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RAYAT BAHARA UNIVERSITY -MOOT COURT
Before
THE HON’BLE PUNAB AND HARYANA HIGH COURT CIVIL
U/S 13 CLAUSE 1 OF SUB SEC.(ia) OF HINDU MARRIAGE ACT,
BETWEEN
SANJANA.........................................................................................APPELLANT
VERSUS
ASHOK........................................................................................RESPONDENT
IN THE MATTER CONCERNING APPEAL,AGAINST EX- PARTE
DECREE AND DIVORCE
SUBMITTED BY: SUBMITTED TO:
AKSHAY KUMAR Ms. PRIYANKA DHIMAN
ROLL NO. 2107003005 ASSISTANT PROFESSOR
SEMESTER---- 4
th
SEM.
COURSE-----LLB
MEMORIAL ON BEHALF OF APPELLANT
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS AC Appeal Cases AIR All India Reporter ALD Andhra Legal Decision All Allahabad ALT Andhra Law Times Anr. Another Bom Bombay Bom CR Bombay Cases Reporter Code Civil Procedure Code, CRP Civil Revision Petition DMC Divorce and Matrimonial Cases Ed. Edition ELT Equivalent Guj Gujarat Hon’ble Honourable i.e. That is ILR Indian Law Reports LPA Letter Patents Appeal No. Number PC Privy Council PLR Punjab Law Reporter Raj Rajasthan SCC Supreme Court Cases SCR Supreme Court Reports u/s Under section v / vs. Versus
INDEX OF AUTHORITIES
- CASE LAWS CITED : Issue I
- Ajit Singh Thakur Singh and Ors. vs. State of Gujarat, AIR 1981 733
- Shakuntala Devi Jain vs. Kuntal Kumari and Ors, AIR 1969 SC 733
- State of Haryana vs. Hindustan Machine Tools Limited, LPA No.377 of 2012 (O&M)
- State (NCT of Delhi) vs. Ahmed Jaan, Criminal Appeal No. 1262 of 2008
- State Of M.P. And Anr vs Pradeep Kumar And Anr, (2000) 7 SCC 372
- Municipal Corporation vs Voltas Limited And Etc., AIR 1995 Guj 29
- N. Balakrishnan vs. M. Krishnamurthy, (1998)7 SCC 123
- Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased), C.R.P. (NPD) No. 2768 of 2013
- Ram Rattan vs Sunita Kumari Alias Pinki, Civil Revision No.959 of 2004 (O&M)
- Prem Parkash Gupta vs Asha Rani, (1991) 99 PLR 282 Issue II
- Bhanu Kumar Jain v. Archana Kumar, (2005) I SCC 787
- Mohd. Iqbal v. K. Jagadeshwar Rao, 1991 (1) ALT 58
- Polsani Jagannath Reddy And Anr. vs Gurram Vijaya, 1998 (4) ALD 262
- Ajudhia Prasad v. Balmukund ILR, (1866) 8 All 354 (FB)
- Uma Nath Pandey V. State of U.P, 2009 (237) ELT 241 (S.C.)
- Praveen Mehta vs. Inderjit Mehta, Appeal (civil) 3930 of 2002
- Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate, 2003 (3) SCR 607
- Naveen Kohli vs Neelu Kohli, 2006 SC 1675
- Samar Ghosh v. Jaya Ghosh, Appeal (civil) 151 of 2004
• BOOKS USED :
S. No. NAME OF BOOK
1. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani
Eastern Book Co.(EBC)
2. Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency,
rd
edition)
• STATUTES USED :
S.No. STATUTES
1. The Limitation Act, 1963 2. The^ Code^ of^ Civil^ Procedure,^1908 3. The^ Hindu^ Marriage^ Act,^1955
STATEMENT OF JURISDICTION
The Appellant has approached this Hon’ble Court under Section 96(2) of the Code of
Civil Procedure, 1908. 1
(^1) Section 96 : 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 the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. No appeal shall lie from a decree passed by the Court with the consent of parties.
However never found her at home. He could not even visit his daughter because Sanjana was never available. Ex-parte Judicial Proceedings Finally, on 2nd January 2016, Ashok frustrated with Sanjana, filed for divorce u/s 13 of the Hindu Marriage Act,1955 alleging desertion by his wife, Sanjana. The summons were 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. The petition was heard 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 of the order was sent by Ashok to Sanjana on the address provided. Second Marriage On 25th February, 2017, Ashok married Miss Pooja, a Hindu by religion. Pooja conceived Ashok’s child and was due for delivery on 13th April, 2018. Appeal against the Ex-parte Decree Meanwhile, Mrs. Sanjana filed an application on 3rd October, 2017 before the High Court, for condonation of delay for filing appeal against the decree of Family Court granting ex- parte decree to Ashok stating 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 she never had the intention to desert Ashok but only wanted to teach his mother a lesson.
ISSUES PRESENTED ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE OR NOT? ISSUE II: WHETHER THE EX-PARTE DIVORCE DECREE COULD BE SET ASIDE OR NOT? ISSUE III: WHETHER THERE WAS DESERTION AND CRUELTY OR NOT? ISSUE-IV WHETHER THE APPELLANT HAS ANY INTENTION TO LEAVE RESPONDENT OR NOT.?
PLEADINGS ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE? [1.1] Definition of Appeal :
- It is humbly submitted before the Honourable Court that appeal is a matter of right which is provided through the Legislature under specific Statutes. Appeal provides the aggrieved party in any decree to approach the superior court. Although this right comes with a bar of limitation period but if a genuine and just cause can be shown for the delay in approaching the court within the limitation period prescribed then the Court should give due consideration to such cause. The limitation period is a technical aspect and thus should not be disregarded without considering the just cause.
- Appeal as defined under the Merriam-Webster Dictionary is: “A legal proceeding in which a case is brought before a higher court for review of a lower court's judgment with an aim of convincing the higher court that the lower court's judgment was incorrect.”^2
- The Black’s Law Dictionary defines Appeal as “ Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in 3 which the error or injustice is sought to be corrected or reversed.” (^2) Definition of Appeal by Merriam-Webester Dictionary, Since 1828 (^3) Black’s Law Dictionary - Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, By HENRY CAMPBELL BLACK, M. A.
[1.2] Sufficient cause for the delay in filing the appeal:
- Although there is a prescribed period for filing an appeal in the higher court, but there may be certain circumstances due to which a person might not be able to approach the court. The statutory provisions barring the delay had been made in order avoid the abuse of the process of the court, but it does not mean it will take away the rightful opportunity of the aggrieved party from putting ahead his point nor does it mean that the aggrieved party would be deprived of his right of accruing remedy.
- The Indian Limitation Act, 1963, thus provides with the provision wherein the appeal could be admitted even beyond the prescribed limit. - Extension^ of^ prescribed^ period^ in^ certain^ cases-^ “Any^ appeal^ or^ any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation – The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” 4
- In the instant case, the Appellant had a sufficient cause due to which she could not approach the appellate court within the limitation period. The summons by the Court were sent to the address as had been mentioned by the Respondent. The same were never received by the Appellant since she no longer lived at that address. Thus, the appellant could not appear in the proceeding appear under Section 13, and the decree was passed ex-parte. It is only when the Appellant got to know about then only she had approached the Honourable Court. (^4) Section 5, Indian Limitation Act, 1963
- In State (NCT of Delhi) vs. Ahmed Jaan ,^8 the Supreme Court held that, “The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay.”
- In State Of M.P. And Anr vs Pradeep Kumar And Anr,^9 it was observed by the Supreme Court that “even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.” [1.3] Period of delay is not the criteria:
- In Municipal Corporation vs Voltas Limited And Etc.,^10 it was observed by the Gujarat High Court that “whether the delay is for a short period or a long period is of no consequence because the Court is required to consider the reasons for delay and to apply to principles laid down in various cases. It is not, a matter of rule that because there is a short delay, it should be condoned or because there is a long delay, the application for condonation of delay should be rejected. It depends upon the sufficiency or otherwise of the reasons mentioned in the application for condonation of delay.”
- In the case of N. Balakrishnan vs. M. Krishnamurthy,^11 it was held by the Supreme Court that “Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest (^8) Criminal Appeal No. 1262 of 2008 (^9) (2000) 7 SCC 372 (^10) AIR 1995 Guj 29 (^11) (1998)7 SCC 123
range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.”
- In Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased),^12 it was stated by the Madras High Court that, “length of delay is not material, but the reasons stated thereof for condonation of delay. In other words, for condonation of delay, the reasons adduced must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay.” [1.4] Second Marriage :
- In the instant case, the maintainability of the appeal is under question for which the respondent has put forward sufficient reasons, but the other point that is under question is that whether the second marriage would disallow the appellant from filing the appeal or not. Apart from this, the question that needs to be answered is the validity of the second marriage of the respondent.
- Divorced persons when may marry again: “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has dismissed, it shall be lawful for either party to-the marriage to marry again.”^13
- Since the appeal is to the High Court, the period of limitation for filing the appeal according to Article 116 of the Indian Limitation Act, 1963 is 90 days. However, we have established that the appellant had a sufficient cause for filing the appeal after the limitation period had expired because of the reason that she was never having the knowledge of the summons which had been sent to the address specified by the (^12) C.R.P. (NPD) No. 2768 of 2013 (^13) Section 15, Hindu Marriage Act, 1955
ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE? [2.1] Meaning of Ex-Parte :
- It is humbly submitted before the Honourable Court that the decree passed by the Family Court was ex-parte, and that the appellant is an aggrieved party who had the right to present her side but she could not do the same due to summons which did not reach her. This led to the non- appearance and further extended the delay.
- The term ex-parte has been derived from a Latin term “ in absenti ”, which literally means “decree passed when the defendant is absent.” Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. This kind of decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid ground it is properly lawful, operative and enforceable like bi-parte decree and it has all the force of valid decree.^16
- It is humbly averred that in context of the present case the ex-parte divorce decree passed by the Family Court is liable to be set aside. This is because of the two reasons - First, there has been violation of Principles of Natural Justice and Secondly, the summons were not duly served to the appellant. [2.2] Remedies for ex-parte decree:
- Appeal from Original Decree^17 : (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 (^16) Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17 (^17) Section 96, The Code of Civil Procedure, 1908
passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from 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 Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees].
- Setting aside decree ex-parte against defendants^18 : 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- (i) the summons was not duly served, or (ii) 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, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been irregularity in the service of summons, if it is satisfied that (^18) Order IX Rule 13, The Code of Civil Procedure, 1908
