UID-22BLL10057

4TH RBUSL NATIONAL MOOT COURT COMPETITION, 2019

Before

THE HON’BLE HIGH COURT OF DELHI

CIVIL APPEAL NO OF 2019

UNDER SECTION 13(ia)(ib) OF HINDU MARRIAGE ACT, 1955

BETWEEN

RITU…...............................................................................................................APPELLANT

V.

SUSHIL...........................................................................................................RESPONDENT

IN THE MATTER CONCERNING APPEAL, EX-PARTE DECREE AND DIVORCE

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS........................................................................................4

INDEX OF AUTHORITIES...........................................................................................6

Cases.....................................................................................................................6

Books & Lexicons…............................................................................................7

Statutes….............................................................................................................8

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

ISSUES PRESENTED....................................................................................................10

STATEMENTS OF FACTS...........................................................................................11

SUMMARY OF PLEADINGS.......................................................................................13

PLEADINGS..............................................................................................................14

[1] WHETHER THE APPEAL IS MAINTANABLE?

[1.1] Definition of Appeal.......................................................................................14

[1.2] Sufficient cause for the delay in filing the appeal.......................................14

[1.3] Period of delay is not the criteria...................................................................16

[1.4] second marriage...............................................................................................17

[2] WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?

[2.1] Meaning of ex-parte........................................................................................18

[2.2] Remedies for ex-parte decree..........................................................................19

[2.3] Sufficient cause.................................................................................................20

[2.4] Custody of Minor Daughter............................................................................22

[3] WHETHER THERE WAS CRUELTY?

[3.1] Meaning of Cruelty.........................................................................................24

 [3.2] Mental Cruelty................................................................................................25

[3.3] Section 23 of H.M.A.......................................................................................27

[4] WHETHER THERE WAS DESERTION?...............................................................27

[4.1] Meaning of Desertion.....................................................................................27

[4.2] Factum and Animus.......................................................................................28

[4.3] Constructive desertion....................................................................................28

PRAYER.............................................................................................................................31
 TABLE OF ABBREVIATION

& And
AIR All India Reporter
Anr. Another’s
Art. Article
ALD Andhra Legal Decisions
Bom. Bombay
BLJR Bihar Law Journal Report
CrLJ Criminal Law Journal
Cal. Calcutta
Can’t Can not
CTC Current Tamil Nadu Cases
C.P.C The Code of Civil Procedure, 1908
DMC Divorce and Matrimonial Cases
Ed. Edition
HC The High Court
Hon’ble Honourable
HMA The Hindu Marriage Act, 1955
i.e. That is
Ker. Kerala
ILR Indian Law Reporter
Ltd. Limited
M.P. Madhya Pradesh
MANU Manupatra
No. Number
Ors. Others
O. Order
P. Page
NDEX OF AUTHORITIES

 CASE LAWS CITED

 Issue 1
1. Ajit Singh Thakur Singh and Ors. vs. State of Gujarat, AIR 1981 SC 733.
2. Shakuntala Devi Jain vs. Kuntal Kumari and Ors, AIR 1969 SC 575.
3. Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat AIR 1970 SC 1
4. State of Haryana vs. Hindustan Machine Tools Limited, AIR 2015 P&H 45.
5. C. Lyall and Company vs. B. Union of India and Ors., (1973 ) ILR1 Delhi 905.
6. State (NCT of Delhi) vs. Ahmed Jaan, 2008 CriLJ 4355.
7. Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd., 2018 SCC OnLine
Del 9559
8. N. Balakrishnan vs. M. Krishnamurthy, AIR 1998 SC 3222.
9. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the SC
 Issue II
10. Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17.
11. Polsani Jagannath Reddy and Anr. vs Gurram Vijaya, 1998 (4) ALD 262.
12. Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB).
13. G.P. Srivastava v. R.K. Raijada, (2000) 3 SCC 54.
14. Diwalibai Damjibhai Bhatti and Ors. vs. Jaikumar Gopaldas Jain and Ors; AIR 1969
Bom 393.
15. M.K. Prasad vs. P. Arumogam, AIR 2001 SC 2497.
16. Parimal vs. Veena, AIR 2011 SC 1150
 Issue III
17. Pushpa Rani vs. Krishan Lal, AIR 1982 Delhi 107.
18. Dastane v Dastane ,AIR 1975 SC 1534.
19. Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591.
20. Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582.
21. Smt. Krishna Banerjee v. Bhanu Bikash Bandyopadhyay, AIR 2001 Cal 154.
22. Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate, AIR 2003 SC 2462.
23. Vimal Balani v. Jai Krishan Balani, (2009) ILR3Delhi295.
24. Gangadharan vs. T.K. Thankam, AIR 1988 Ker 244.
25. Samar Ghosh v. Jaya Ghosh, 2007(3) ALT 62 (SC).
S.NO. NAME OF BOOKS
1. Mulla, D.F, Mulla Hindu Law, 15th ed.
2. Hindu Law, Sastri, G.S, 1940
3. MULLA, Principles of Hindu Law, Vol. I, 18th Ed. 2001
4. The Modern Hindu Law, Paras Diwan,4th edn
5. Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed
6. Kusum, Family Law Lectures, Family Law I, 4th edn, 2015.
7. Halsbusry’s Laws of India: Volume 26 (New Delhi: Butterworth’s,
2007)
8. The Dictionary of English Law (1972)
9. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani
Eastern Book Co.(EBC)2016
10. Merriam-Webster Dictionary ,1828
11. English Oxford Living Dictionaries, Powered by Oxford
12. Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd
edition)
 S.NO. STATUTES

1. The Limitation Act, 1963

2. The Code of civil Procedure, 1908
3. The Family Courts Act, 1984
4. The Hindu Marriage Act, 1955
5. General clauses Act, 1897
6. The Indian Evidence Act, 1872
7. The Hindu Minority and Guardianship Act, 1956
8. The Guardianship and Wards Act, 1890

ONLINE SOURCES

1. www.scconline.com
2. www.manupatrafast.com
3. www.indiankanoon.org
4. www.hindustantimes.com
5. www.livelaw.in
6. https://www.merriam-webster.com
7. https://timesofindia.indiatimes.com/
 STATEMENT OF JURISDICTION

The Appellant have approached the 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.
 ISSUES PRESENTED

ISSUE I:

WHETHER THE APPEAL IS MAINTAINABLE?

ISSUE II:

WHETHER THE EX-PARTE DIVORCE DECREE COULD BE SET ASIDE?

ISSUE III:

WHETEHR THERE WAS CRUELTY?

ISSUE IV:

WHETHER THERE WAS DESERTION?

 STATEMENT OF FACTS

*The Marriage*

Sushil and Ritu got married on 15 th January, 2011, which took place according to the Hindu
marital rituals, after which they stayed together in their matrimonial residence at Karol Bagh,
Delhi. It was a happy marriage but Ritu’s mother-in-law from the very beginning had an
orthodox thinking. She was of the opinion that that there must be a grandson so that her
family lineage could move ahead. The relation of Sushil and Ritu was immature as not much
time had passed since their marriage, they wanted to take their time before starting the
family, but due to the constant and increased pressure by the mother-in-law they had to
unwillingly conceive the child at that early stage. According to the said rituals, Ritu was sent
to her paternal home for the delivery.

*Constant Taunts and Insulting Remarks*

On 15th July, 2012 Ritu gave birth to a baby girl, but instead of the happiness it became the
reason of conflict between Ritu and her mother-in-law. With time these differences increased
gradually which even turned into insulting remarks for having a girl rather than a boy. She
also threated to remarrying her son. Frustrated and hurt due to the whole scenario, Ritu
requested to move out separately, to which Sushil denied. By each passing day the mental
pressure on Ritu increased, the love between their marriage also started to vanish, resulting
Ritu could not agree for the sexual intercourse with Sushil, neither could she contribute in the
daily household chores.

*Ugly Turn in the Marriage; Some fatal efforts*

The situation worsened even more when Sushil started coming late from the office and also
started drunk abusing to Ritu. Still eager to save the relation, Ritu once again requested to
move to another house, to which Sushil refused again. Due to the mental threshold, Ritu left
her in laws home on 18th Octobor 2013 along with her minor daughter. After almost three
months, on 10th January, 2014 Sushil visited Ritu’s paternal home. He made few efforts to
contact to Ritu but considering the prior background, they were not sufficient to bring back
her wife.
 *Ex-parte Judicial Proceedings*

Sushil filed an application for the Restitution of Conjugal Rights under Section 9 of the
Hindu Marriage Act, 1955. Summons regarding the same were sent on a wrong address
knowingly by Sushil, due to which Ritu could not appear in the hearings and an ex parte
decree was passed. The summons of its execution was also sent on the wrong address. Again,
Sushil filed a petition under Section 13 of the Hindu Marriage Act, 1955 on 15th March,
2016. The summons regarding the same still could not be received by Ritu as they kept on
going on a wrong address by Sushil. The Family Court heard the matter ex parte and granted
divorce to Sushil on 26th September, 2016. Soon, after six months from the date of divorce
Sushil remarried on 25th March, 2017 to a girl named Kriti, they had a child at 18th May,
2018.

*Appeal against the Ex-parte Decree*

As soon as Ritu got knowledge about the whole scenario through a common friend, she filed
an application for the condonation of delay for filing appeal against the decree of the Family
Court. After considering her reasoning that she had moved out to a new house with her
parents, and that she left her matrimonial home only to teach a lesson to her mother-in-law,
for which she had taken Sushil into confidence. Thus, she never had any such intentions to
severe her matrimonial bond. The court condoned the delay and accepted the application. The
case is now before the appellate court.
 SUMMARY OF PLEADINGS

ISSUE I: WHETHER THE APPEAL IS MAINTANABLE?

It is humbly submitted before the Hon’ble Court that the appeal is maintainable as even
though the appeal has been filed after the expiry of the time limit but that was due to a
sufficient cause and the provisions of the Limitation Act provide that the appeal is time
barred but they also provide certain exception to it.

ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?

It is humbly submitted before the Hon’ble Court that the ex-parte decree to be set aside as the
appellant was not duly served with the summons and thus had no idea about the proceedings.
There was sufficient cause for the non-appearance of the appellant and also in the delay in
approaching for the remedy.

ISSUE III: WHETHER THERE WAS CRUELTY?

It is humbly submitted before the Hon’ble Court that the respondent and his mother in law
caused mental cruelty to the appellant which became the reason for leaving the matrimonial
home. The time span during she lived in her matrimonial home, she was stressed for having a
baby without her will, then the pressure for having a baby boy, the threats of getting the
respondent remarried, thereafter the drinking and abusing by the respondent.

ISSUE IV: WHETHER THERE WAS DESERTION?

It is humbly submitted before the Hon’ble Court that there was a condition of constructive
desertion in the instant case, as even though it was the appellant who physically left the
home, but it were the acts of the respondent and her mother-in-law that led to such desertion.
Thus, the acts of the respondent and his family are liable and not the appellant.
 PLEADINGS

ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

[1.1] Definition of Appeal:

1. 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 higher court, although this right comes with a bar of
limitation period but that too can be taken into consideration if a genuine and just cause could
be shown for the delay in that limitation. The limitation period is a technical aspect and thus
should not be aside without considering the just cause.

2. Appeal as defined under the Merriam-Webster Dictionary is: “A proceeding in which a

case is brought before a higher court for review of a lower court's judgment for the purpose of
convincing the higher court that the lower court's judgment was incorrect.”2

3. 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 which the error or
injustice is sought to be corrected or reversed.”3

[1.2] Sufficient cause for the delay in filing the appeal:

1. 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 seize the rightful opportunity from the aggrieved
party from putting ahead his point and also could not be deprived of his right of accruing
remedy.

2. The Indian Limitation Act, 1963, thus provides with the provision wherein the appeal
could be admitted even beyond the prescribed limit.

2
Definition of Appeal by Merriam-Webster, Merriam-Webster, Since 1828.
3
Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence,
Ancient and Modern, Henry Campbell Black M.A., 6th Ed.
  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

2. In the case of Ajit Singh Thakur Singh and Ors. vs. State of Gujarat,5 the SC held that
“the sufficient cause must establish that because of some event or circumstance arising
before limitation expired it was not possible to file the appeal within tune. No event or
circumstance arising after the expiry of limitation can constitute such sufficient cause. There
may be events or circumstances subsequent to the expiry of limitation which may further
delay the filing of the appeal.”

3. In Shakuntala Devi Jain vs. Kuntal Kumari and Ors, 6 the SC quoted that “Section 5 gives
the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which
judicial power and discretion ought to be exercised upon principles which are well
understood; the words "sufficient cause" receiving a liberal construction so as to advance
substantial justice when no negligence nor inaction nor want of bonafides is imputable to the
Appellant.”

4. In Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat “An appeal is a

process of civil law origin and removes a cause, entirely subjecting the fact as well as the
law, to a review and a retrial.”

5. In the case of State of Haryana vs. Hindustan Machine Tools Limited,7 it was observed
by the Punjab and Haryana High Court that “Section 5 of 1963 Act enables the Court to
admit an appeal or an application after the expiry of prescribed period of limitation on
sufficient cause being shown for the delay. It is meant to condone the default of the party

4
Section 5, Indian Limitation Act, 1963.
5
AIR 1981 SC 733.
6
AIR 1969 SC 575.
7
AIR 2015 P&H 45.
wherever it is able to satisfy that sufficient cause exists. Thus, sufficient cause is sine qua non
for exercise of discretion for condoning delay under this provision.”

6. In C. Lyall and Company vs. B. Union of India and Ors.,8 it was held that “While
considering the question of condensation of delay under section 5 of the Limitation Act, it
would be immaterial and even irrelevant to invoke general consideration of diligence of
parties and that what the party was to show was as to why he did not file the proceedings
concerned on the last date of limitation prescribed and this would inevitably mean that the
party will have to show sufficient cause not only for not filing the proceedings on the last day
of limitation but to explain the delay made thereafter day by day.”

7. In State (NCT of Delhi) vs. Ahmed Jaan,9 the 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.”

[1.3] Period of delay is not the criteria:

1. In the case of Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd., 2018 SCC
OnLine Del 9559,10 it was held that “While considering the application seeking condonation
of delay, the period of delay is not the criteria. A short delay may not be condoned in absence
of an acceptable explanation while a large delay may be condoned if the explanation is
satisfactory.”

2. In the case of N. Balakrishnan vs. M. Krishnamurthy,11 it was held 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 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.”

3. In the instant case we can see that the appellant had a sufficient cause due to which she
could not approach the appellate court within the limitation period. The respondent
knowingly posted the summons for the appellant on the wrong address, so that the appellant

8
(1973 ) ILR1 Delhi 905.
9
2008 CriLJ 4355.
10
Period of delay is not the criteria while considering application under Section 5 of Limitation Act, Devika,
(June 28, 2018).
11
AIR 1998 SC 3222.
could stay out of the proceedings and the respondent could easily get out of the whole process
as soon as possible and get married again. Thus, the appellant could not appear in any of the
proceedings before the Family Court, i.e. neither the proceeding under Section 9 12, nor she
could appear for the proceedings under Section 13 13, and the decree for both of them were
passed ex-parte. It is only when the appellant got to know about everything through a
common friend then only she had approached the Honourable Court.

[1.4] Second Marriage:

1. 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 the
validity of the second marriage. Even though the respondent accrued his right of remarrying
after the grant of divorce under the ex parte decree, but for doing that as well he had to wait
for a period of one year from the date of the said decree till the time the right of appeal of the
aggrieved party exists. Thus, the validity of the re-marriage before the expiry of one year
comes under question.

2. 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.” 14 The provision
clearly states that the second

3. Justice L. Nageswara Rao had observed that: “If there is no right of appeal, the decree of
divorce remains final and that either party to the marriage is free to marry again. In case an
appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The
object of the provision is to provide protection to the person who has filed an appeal against
the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The
purpose of Section 15 of the Act is to avert complications that would arise due to a second
marriage during the pendency of the appeal, in case the decree of dissolution of marriage is

12
Section 9: Restitution of Conjugal Rights, the Hindu Marriage Act, 1955.
13
Section 13, Divorce, the Hindu Marriage Act, 1955.
14
Section 15, the Hindu Marriage Act, 1955.
reversed. The protection that is afforded by Section 15 is primarily to a person who is
contesting the decree of divorce.”15

4. In Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the SC
held that “remarriage of a spouse who obtained ex-parte divorce decree would not render the
application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and
the said application must be considered on its own merits notwithstanding the remarriage.”16

ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?

[2.1] Meaning of ex-parte:

1. 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 some genuine causes that led to the non-
appearance and further extended the delay.

2. The term ex-parte has been derived from a Latin term “in absenti”, which literally means
“decree passed when the defendant is absent.” 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.17

3. An ex parte decree is a decree passed in the absence of the defendant (in absenti). 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.18

4. According to the principles of Natural Justice, every party has a right of Audi Alteram
Partem, which means “right to be heard”. Whenever there is a dispute between two parties,
both of them possess the right to put their points before the court. Under no circumstances
this right could be curtailed if the parties could prove their reasons behind their non-
appearance at the time of the hearing.

15
Restriction For Remarriage Under Hindu Marriage Act Primarily Applicable For Parties Contesting The
Decree Of Divorce: SC, Ashok Kini, (24 Aug 2018 9:39 PM).
16
Application to set aside ex-parte divorce decree by a spouse is not rendered infructuous by remarriage of
opposite spouse, Devika, The SCC Online Blog, (October 28, 2018).
17
Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17.
18
Remedies Against An Ex-parte Decree, Sattwik Shekhar, Manupatra Information Solutions Pvt. Ltd. 2019
[2.2] Remedies for ex-parte decree:

1. 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 to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree19 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].]20

2. Setting aside decree ex parte against defendants

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.

3. These remedies are concurrent and approaching one of the remedies does not mean that the
other remedy would be derogated. In the case of Polsani Jagannath Reddy and Anr. vs
Gurram Vijaya,21 the Madras High Court observed that “As regards the right of these

19
Section 2 (2), the Code of Civil Procedure, 1908.
"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not includea) any adjudication from which an
appeal lies as an appeal from an order, or (b) any order of dismissal for default.
20
Section 96, the Code of Civil Procedure, 1908.
21
1998 (4) ALD 262.
remedies are concerned, it is always open to the suitor to elect any one of the remedies. It is
now well settled by catena of decisions of several High Courts including the Madras High
Court and this Court, that simultaneously the procedure under Order 9, Rule 13 and Section
96(2) of the Code can be pursued. But no order could be passed "after orders are passed
under either of the provisions.” Similar point was adjudged in the case of Ajudhia Prasad v.
Balmukund,22 which stated that “Where two proceedings or two remedies are provided by a
statute, one of them must not be taken as operating in derogation of the other.”

[2.3] Sufficient Cause:

1. The right to be heard is one of the major rights under the natural justice principle and thus
if the appellant had justifiable reasons due to which she could not avail her right at the time of
the hearing, then that right cannot be seized if she has valid and legal justifications for the
same. A party should not be deprived of hearing unless there has been something equivalent
to misconduct or gross negligence on his part.23

2. O. IX, R. 6 states that-

 Procedure when only plaintiff appears

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on
for hearing, then--

(a) When summons duly served--If it is proved that the summons was duly served, the
Court may make an order that the suit be heard ex parte.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was
not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by
the postponement.24

3. Thus, this provision expressly states that till the time it is not proved that the summons
were duly served, the suit cannot be heard ex-parte. In the instant case, the chain of events
show a clear indication that the respondent was in a hurry to get away with his relation and be
free so that he could remarry and have a son to fulfil his mother’s desire. The appellant had to

22
ILR (1866) 8 All 354 (FB).
23
Civil Procedure with Limitation Act, 1963, C.K. Takwani, 8th Ed., EBC, p. 275.
24
Order IX, Rule 6, the Code of Civil Procedure, 1908.
leave her matrimonial home due to the sufferings she had to go through, but she never had the
intention to severe her marriage.

4. The appellant had shifted to a new place with her parents about whom the respondent
knew, and then too he knowingly sent the summons on the previous residential address so
that he could escape his legal liability and transfer the blame on the appellant.

5. In the case of G.P. Srivastava v. R.K. Raijada,25 the court held that “Under Order 9 Rule
13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of
the Court that either the summons were not duly served upon the defendant or he was
prevented by any 'sufficient cause' from appearing when the suit was called on for hearing.”
It was further observed that “The words "was prevented by any sufficient cause from
appearing" must be liberally construed to enable the court to do complete justice between the
parties particularly when no negligence or inaction is imputable to erring party.”

6. In the case of Diwalibai Damjibhai Bhatti and Ors. vs. Jaikumar Gopaldas Jain and
Ors.26 “power to dismiss in default or to proceed ex parte also implies equally a duty to
restore an application dismissed for default or to set aside ex parte order if the defaulting
party satisfies the authority that there was good cause for non-appearance. This right and this
duty is a sine qua non of judicial procedure.”

7. In the case of M.K. Prasad vs. P. Arumogam,27 the apex court held that “In any case in
which a decree is passed ex-parte, the defendant can apply to the court by which the decree
was passed for an order to set it aside and if he satisfies the court 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.”

8. In the case of Parimal vs. Veena,28 it was observed by the Learned Judges that "Sufficient
Cause" is an expression which has been used in large number of Statutes. The meaning of the
word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the
purpose intended. Therefore, word "sufficient" embraces no more than that which provides a
platitude which when the act done suffices to accomplish the purpose intended in the facts

25
(2000) 3 SCC 54.
26
AIR 1969 Bom 393.
27
AIR 2001 SC 2497.
28
AIR 2011 SC 1150.
and circumstances existing in a case and duly examined from the view point of a reasonable
standard of a cautious man. In this context, "sufficient cause" means that party had not acted
in a negligent manner or there was a want of bona fide on its part in view of the facts and
circumstances of a case or the party cannot be alleged to have been "not acting diligently" or
"remaining inactive".

[2.4] Custody of Minor Daughter:

1. In the instant case the daughter of the appellant and respondent is a minor and thus the
Family Court while passing the decree should have taken care of the interests of the minor
child as well. Here in the present facts neither the respondent showed any interest in
obtaining the guardianship of the daughter nor the subordinate court took this issue in
consideration. The respondent’s act show that he wanted to get away with his previous
relation and the liabilities. Thus, he remarried so that his mother’s dream of having a
grandson could be fulfilled.

2. Section 26 of the Hindu Marriage Act, 1955 states that “In any proceeding under this Act,
the court may, from time to time, pass such interim orders and make such provisions in the
decree as it may deem just and proper with respect to the custody, maintenance and education
of minor children, consistently with their wishes, wherever possible, and may, after the
decree, upon application by petition for the purpose, make from time to time, all such orders
and provisions with respect to the custody, maintenance and education of such children as
might have been made by such decree or interim orders in case the proceeding for obtaining
such decree were still pending, and the court may also from time to time revoke, suspend or
vary any such orders and provisions previously made.”29

3. Section 17 of the Guardianship Act states as: Matters to be considered by the Court in
appointing guardian30.—

29
Section 26, the Hindu Marriage Act, 1955.
30
Section 4(b), the Hindu Minority and Guardianship Act, 1956:
(b) “guardian” means a person having the care of the person of a minor or of his property or of both his person
and property, and includes—
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
(1) In appointing or declaring the guardian of a minor31, the Court shall, subject to the
provisions of this section, be guided by what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the
age, sex and religion of the minor, the character and capacity of the proposed guardian and
his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or
previous relations of the proposed guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference, the Court may consider that
preference.

(5) The Court shall not appoint or declare any person to be a guardian against his will.32

4. Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect
of the minor's person as well as in respect of the minor's property (excluding his or her
undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided
that the custody of a minor who has not completed the age of five years shall ordinarily be
with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after
her, the father;

(c) in the case of a married girl-the husband; Provided that no person shall be entitled to act
as the natural guardian of a minor under the provisions of this section-

(i) if he has ceased to be a Hindu, or

(ii) if he has completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi) Explanation.- In this section, the expressions 'father' and
'mother' do not include a stepfather and a step-mother.33

31
Section 4(a), the Hindu Minority and Guardianship Act, 1956: "minor" means a person who has not
completed the age of eighteen years;
32
Section 17, the Guardinashp and Wards Act, 1890.
33
Section 6, the Hindu Minority and Guardianship Act, 1956.
 ISSUE III: WHETHER THERE WAS CRUELTY?

[3.1] Meaning of Cruelty:

1. It is humbly submitted before the Honourable Court that the appellant suffered cruelty due
to a number of acts, gestures and words by her mother-in-law and the respondent husband.
Cruelty may be defined as “Behaviour which causes physical or mental harm to another,
especially a spouse, whether intentionally or not.”34

2. In Pushpa Rani vs. Krishan Lal,35Cruelty is wilful and unjustified conduct of such a
character as to cause danger to life, limb or health bodily or mental , as to give rise to
reasonable apprehension of such a danger. The question in all such cases is whether the acts
or conduct of the party charged, were cruel according to the ordinary sense of that word.

3. In Dastane v Dastane,36 the Court observed that “any inquiry covered by that provision
had to be whether the conduct charged as cruelty is of such a character as to cause in the
mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live
with the respondent.”

4. In Savitri Pandey v. Prem Chandra Pandey,37 Cruelty may be physical or mental. Mental
cruelty is the conduct of other spouse which causes mental suffering or fear to the
matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner
with such cruelty as to cause a reasonable apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the other party.

5. In Praveen Mehta vs. Inderjit Mehta,38 the court cited the observation form the Mulla
Hindu Law, which stated that “It was formerly thought that actual physical harm or
reasonable apprehension of it was the prime ingredient of this matrimonial offence. That
doctrine is now repudiated and the modern view has been that mental cruelty can cause even
more grievous injury and create in the mind of the injured spouse reasonable apprehension
that if will be harmful or unsafe to live with the other party.”

34
English Oxford Living Dictionaries, Powered by Oxford, https://en.oxforddictionaries.com/definition/cruelty
35
AIR1982Delhi107.
36
AIR 1975 SC 1534.
37
AIR 2002 SC 591.
38
AIR2002SC2582.
6. In the case of Smt. Krishna Banerjee v. Bhanu Bikash Bandyopadhyay,39 held that “The
refusal to attend the domestic work etc. cannot be in the ordinary circumstances, an instance
of cruelty either mental or physical.”

[3.2] Mental Cruelty:

1. The general rule in all cases of cruelty is that the entire matrimonial relationship must be
considered, and that rule is of special value when the cruelty consists not of violent acts but
of injurious reproaches, complaints, accusations or taunts. 40 Here, in the present case the
appellant had to suffer mental agony from the very beginning of her marriage, her mother-in-
law used to pass insulting remarks and constant taunts towards the appellant.

2. In Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate,41 the court observed

that “As to what constitute the required mental cruelty for purposes of the said provision, in
our view, will not depend upon the numerical count of such incidents or only on the
continuous course of such conduct, but really go by the intensity, gravity and stigmatic
impact of it when meted out even once and the deleterious effect of it on the mental attitude,
necessary for maintaining a conducive matrimonial home. If the taunts, complaints and
reproaches are of ordinary nature only, the Courts perhaps need consider the further question
as to whether their continuance or persistence over a period time render, what normally
would, otherwise, not be a so serious an act to be so injurious and painful as to make the
spouse charged with them genuinely and reasonable conclude that the maintenance of
matrimonial home is not possible any longer.”

3. The expression 'mental cruelty' in 24 American Jurisprudence 2d, has been described
hereunder: "Mental Cruelty as a course of unprovoked conduct toward one's spouse which
causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable
and unendurable. The plaintiff must show a course of conduct on the part of the defendant
which so endangers the physical or mental health of the plaintiff as to render continued
cohabitation unsafe or improper, although the plaintiff need not establish actual instances of
physical abuse."42

39
AIR 2001 Cal 154.
40
Halsbury's Laws of England [Vol.13, 4th Edition, para 1269].
41
AIR 2003 SC 2462.
42
Vimal Balani v. Jai Krishan Balani, (2009) ILR3 Delhi 295.
4. In Gangadharan vs. T.K. Thankam,43 Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony
and torture may well constitute cruelty within the meaning of the Act. Mental cruelty may
consist of verbal abuses and insults by using filthy and abusive language leading to constant
disturbance of mental peace of the other party.

5. In the case of Samar Ghosh v. Jaya Ghosh,44 the apex court enumerated certain points
regarding mental cruelty; some of them are as follows

 Mental cruelty is a state of mind. The feeling of deep anguish, disappointment,

frustration in one spouse caused by the conduct of other for a long time may lead to
mental cruelty.
 A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.

6. “An alcoholic husband is a nuisance but even his drinking habit, due to which he turns up
at home late in the night, amounts to mental cruelty to the wife.”45

7. In Vinitha Saxena v. Pankaj Pandit, 46 held that “what constitutes mental cruelty will not
depend upon the numerical count of such incidents or only on the continuous course of such
conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out
even once and deleterious effect of it in the mental attitude, necessary for maintaining a
conducive matrimonial home.”

8. The mother-in-law of the appellant through her continuous course of conduct made it
impossible for the appellant to bear anything further. It all started with her persistent insistent
for conceiving a child, thereafter, she started to pass insulting remarks for the baby girl as she
was very keen for having a grandson rather than a granddaughter. Also, she continuously
gave threats that she might remarry her son in order for having a boy child for their family.
This in the present scenario could be perceived to be true, as the chain of events show that
their motive was to get the respondent remarried. Further, the acts of mother-in-law were
already putting a lot of mental pain on the appellant; this even got clubbed with the acts of the

43
AIR 1988 Ker 244.
44
2007(3) ALT 62 (SC).
45
Hubby coming home drunk amounts to mental cruelty, DNA, Mustafa Plumber, (Jul 18, 2013, 10:40 AM
IST)
46
(2006)3 SCC 778.
respondent husband who started coming late from the office drunk and used to abuse the
appellant as well.

[3.3] Section 23 of H.M.A.:

1. This provision states as follows-

 Decree in proceedings-

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

 (b) where the ground of the petition is the ground specified in clause (i) of sub-section
(1) of section 13, the petitioner has not in any manner been accessory to or connived
at or condoned the act or acts complained of, or where the ground of the petition is
cruelty the petitioner has not in any manner condoned the cruelty.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the
first instance, in every case where it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavour to bring about a reconciliation between
the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding
wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv),
clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.47

2. In the instant case the acts of the respondent obtained the divorce decree on the ground of
cruelty and desertion but his acts themselves of the nature of cruelty and thus he cannot take
the same defence for himself.

ISSUE IV: WHETHER THERE WAS DESERTION?

[4.1] Meaning of Desertion:

1. It is humbly submitted before the Honourable Court that the continuous course of conduct
of the respondent and her mother created a compelling situation for the appellant to leave her
matrimonial home. The appellant had no such intention to break her matrimonial bond, but it
was the appellant and his mother together made out a scenario wherein they made it look like

47
Section 23, the Hindu Marriage Act, 1955.
that the desertion was done by the appellant, rather in reality it was their contribution which
led to that happening.

2. “Desertion is the separation of one spouse from the other, with an intention on the part of
the deserting spouse of bringing cohabitation permanently to an end without reasonable cause
and without the consent of the other spouse; but the physical act of departure by one spouse
does not necessarily make that spouse the deserting party.”48

3. "In its essence desertion means the intentional permanent forsaking and abandonment of
one spouse by the other without that other's consent, and without reasonable cause. It is a
total repudiation of the obligations of marriage. In view of the large variety of circumstances
and of modes of life involved, the Court has discouraged attempts at defining desertion, there
being no general principal applicable to all cases.”49

[4.2] Factum and Animus:

1. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati, 50For the offence of desertion, so far
as the deserting spouse is concerned, two essential conditions must be there, namely,

(1) the factum of separation, and

(2) the intention to bring cohabitation permanently to an end (animus deserendi).

2. In Lachman Utamchand Kirpalani vs. Meena,51the court held that “It is settled law that
the burden of proving desertion – (i) the "factum" as well as (ii) the "animus deserendi" – is
on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction
of the Court, the desertion throughout the entire period of two years before the petition as
well as that such desertion was without just cause. In other words, even if the wife, where she
is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband
has still to satisfy the Court that the desertion was without just cause.”

48
Rayden and Jackson on Divorce and Family Matters, 16th Ed., p. 128.
49
Halsbury's Laws of England (3rd Edn.) Vol. 12, pp. 241 to 243.
50
AIR 1957 SC 176.
51
AIR 1964 SC 40.
3. In the case of Sau Varsh Patil v. Parvin Madhukar Patil, (2209) I DMC 649 (Bom.), the
court held that mere separate residence by one party, per se, would not amount to desertion,
the other party needs to establish animus deserdendi.52

4. In the case of Ravi Kumar v. Julmidevi, 53the apex court observed that “the party alleging
desertion must not only prove that the other spouse was living separately but also must prove
that there is an animus deserendi on the part of the wife and the husband must prove that he
has not conducted himself in a way which furnishes reasonable cause for the wife to stay
away from the matrimonial home.”

[4.3] Constructive Desertion:

1. In Nisha Rani vs. Sohan Singh Nehra,54 held that “The desertion is not to be tested by
merely ascertaining which party left the matrimonial home first. If one spouse is forced by
the conduct of the other to leave, the desertion could be by such conduct of other spouse and
compelled to live separately.”

2. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati,55 the court analysed the concept of
constructive desertion, it observed that “Doctrine of constructive desertion-Desertion is not to
be tested by merely ascertaining which party left the matrimonial home first, if one spouse is
forced by the conduct of other to leave home, it may be that the spouse responsible for the
driving out is guilty of desertion. There is no substantial difference between the case of a man
who intends to cease cohabitation and leaves his wife and the case of a man which compels
his wife by his conduct, with the same Intention, to leave him.”

3. In Jyotish Chandra Guha vs. Meera Guha,56 the court observed that "Assuming that
Injury or apprehended injury to health is found, the Court has then to decide whether the sum
total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct
was sufficiently serious to say that from a reasonable person's point of view after a
consideration of any excuse which this respondent might have in the circumstances, the
conduct is such that the petitioner ought not to be called upon to endure it."

52
Family Law-I, Prof. Kusum, 4th Ed., Lexis Nexis, p. 89.
53
(2010) 4 SCC 476.
54
237 (2017) DLT1.
55
Ibid.
56
AIR 1970 Cal 266.
4. In the case of Bhargavkumar Pranshankar Shukla vs. Chhayaben Bhargavkumar
Shukla,57 the High Court of Gujarat held that “The essence of desertion is the forsaking and
abandonment of one spouse by the other without reasonable cause and without the consent or
against the will of the other. Accordingly, desertion under the Hindu Law is a withdrawal of a
party from the marital home does not by itself constitute desertion by that party. It is the party
who by his or her conduct brings cohabitation to an end that is guilty of desertion.”

5. The elements of desertion are as follows-

(a) the fact of separation (factum deserdendi), and

(b) the intention to desert (animus deserdendi). The further elements are :
(i) without any reasonable cause,
(ii) Without the consent of the other party or against the wishes. Further, to
examine the elements of desertion, the following two preliminary
observations are necessary to note with a view to clearly
comprehending the legal concept of desertion:
(A) Until an action is brought desertion remains an inchoate offence,
that is to say, it can be terminated by the party in desertion by
either resuming cohabitation or expressing an unequivocal
intention to resume cohabitation.
(B) Although fact of separation is an essential element of desertion, it
does not mean that the party who leaves the matrimonial home is
necessarily the deserter. It may be that a party who stays behind
may by conduct or act on his part had made it intolerable for the
other spouse to stay on in the matrimonial home. This aspect of
desertion is called constructive desertion.58

6. In the case of Rishi Raj Arora v. Chander Kanta,59 the court held that “Desertion is not to
be tested by merely ascertaining which party left the matrimonial home. If one spouse is
forced by the conduct of the other to leave the home, the spouse responsible for driving out
is guilty of desertion and not the one who departs.”

57
II(2003) DMC 428.
58
Law of Marriage and Divorce, Fourth Edition by Paras Diwan, pp. 410 & 411.
59
(1985) 2 DMC 28 (Del).
 PRAYER

In the light of the facts stated, issues raised, authorities cited and pleadings advanced, the
Counsel for the Appellant humbly prays that Hon’ble Court be pleased to adjudge, hold and
declare:

 That the appeal application filed by the Appellant is maintainable in the court of law.
 That the ex-parte divorce decree passed by the Family Court to be set aside.
 That adequate compensation to be granted to the Appellant for the suffering due to the
mental cruelty and constructive desertion.

Any other order as it deems fit in the interest of equity, justice and good conscience.

For This Act of Kindness, the prosecution shall be Duty Bound Forever Pray.

Date: Sd/-

Place: (Counsel for Appellant)