Respondent Memo

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4TH RBUSL NATIONAL MOOT COURT COMPETITION, 2019

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Before
THE HON’BLE HIGH COURT OF DELHI
CIVIL APPEAL NO.____ OF 2019
UNDER SECTION 13(ia)(ib) OF THE HINDU MARRIAGE ACT, 1955
BETWEEN
RITU……………………………………………………………………………APPELLANT
V.
SUSHIL………………………………………………………………………RESPONDENT
IN THE MATTERS CONCERNING APPEAL, EX-PARTE DECREE AND DIVORCE
MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENT Page 1
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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 MAINTAINABLE?
[1.1] Duration for filing an appeal under the Family Courts Act, 1984……….14
[1.2] Duration for filing appeal under the Hindu Marriage Act, 1955…………15
[1.3] Appeal from an original decree and its limitation period…………………15
[1.4] Timeline of the events………………………………………………………..16
[1.5] Validity of the second marriage……………………………………………..17
[2] WHETHER THE EX PARTE DIVORCE DECREE COULD BE SET ASIDE?
[2.1] Filing of Written Statement and Ex-Parte Decree…………………………17
[2.2] Refusal to accept the summons……………………………………………...19
[3] WHETHER THERE WAS CRUELTY?
[3.1] Definition of Cruelty………………………………………………………...22
[3.2]The acts that amount to cruelty……………………………………………..23
[3.3] Denial from sexual intercourse and withdrawal from household chores as
an act of cruelty…………………………………………………………………………….24
[3.4] No willingness of wife to return to matrimonial home…………………….25

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[4] WHETHER THERE WAS DESERTION?
[4.1] Meaning of Desertion……………………………………………………….26
[4.2] Elements of Desertion……………………………………………………….27
[4.3] Acts that amount to desertion………………………………………………28
[4.4] Desertion as a ground of Divorce ………………………………………….29
PRAYER …………………………………………………………………………………..31

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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
Pat. Patna

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Para. Paragraph
Pb. Publication
R.C.R. Restitution of Conjugal Rights
Raj. Rajasthan
R. Rule
S. Section
SC The Supreme Court of India
SCC Supreme Court Cases
SCR Supreme Court Reporter
ss. Sections
The IE Act The Indian Evidence Act, 1872
u/s Under section
UOI Union of India
v. Versus
Vol Volume

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INDEX OF AUTHORITIES
 CASE LAWS CITED:
 Issue I
1. Savitri Pandey v. Prem Chandra Pandey AIR 2002 SC 591.
2. Shivram Dodanna Shetty vs. Sharmila Shivram Shetty AIR 2017 Bom 1.
 Issue II
3. Mariammal v. Lakshmanam, AIR 1959 Ker 297.
4. Puwada Venkateswara Rao vs. Chidamana Venkata Ramana MANU/SC/0493/1976.
5. Salem Municipality v. P. Kumar 2019-1-LW396.
6. Prakash Chander vs. Smt. Sunder Bai and Anr. AIR1979Raj108.
7. Pakharsingh v. Kishansingh AIR 1974 Raj 112.
8. Badamilal v. Harshvardhan, AIR 1994 Raj 9.
 Issue III
9. Ravi Kumar v. Julmi Devi, (2010) I DMC 411 SC.
10. Pawna Devi v. Chuni Lal, II (1998) DMC 1.
11. Vishwanath Sitram Agarwal v. San. Sarle Vishwanath Agarwal AIR (SC) 2586:2012
(7) SCC 288.
12. V. Bhagat v. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337.
13. G.V.N. Kameswara Rao v. G. Jabilli AIR 2002 SC 576.
14. Samar Ghosh v. Jaya Ghosh 2007 ( 4 )ALD 11 ( SC ).
15. Haresh Lalsingh Gadhavi v State of Gujarat,
16. Narendra v. K. Meena AIR 2016 SC 4599.
17. Samar Ghosh v. Jaya Ghosh Ibid.
18. Vidhya Vishwanathan v. Kartik Balakrishnan AIR2015SC285.
19. S. Indrakumari v. S. Subbaiah 2003(1)CTC259.
20. Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105.
21. Sudhanshu Mauli Tripathi son of Sri Umakant Tripathi vs. Meena Kumari Daughter
of Parmanand Pandey and Nandan Dubey 2010(58) BLJR195.
22. Sujoy Ghosh Dastidar vs. Dayita Ghosh Dastidar II(2018)DMC439Jhar.
23. Vijay Vathvi vs. Chhaya Vathvi, II(2018)DMC545MP.

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 Issue IV
24. Savitri Pandey v. Prem Chandra Pandey (2002)2 SCC 73, p. 80.
25. Bipinchandra Jai Songhbhai Shah v. Prabhavati AIR 1957 SC 176.
26. Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi Desertion AIR2002SC88.
27. Savitri Pandey v. Prem Chandra Pandey, Ibid.
28. Lachman Utamchand Kirpalani v. Meena alias Mota AIR 1964 SC 40.
29. Ashish Kumar Dwiwedi v. Swati Tiwari, 2018(6) ALJ 699.
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

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 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/

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STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the application filed before
this Hon’ble Court under Section 96(2) of 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.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

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ISSUES PRESENTED
ISSUE I:
WHETHER THE APPEAL IS MAINTAINABLE?
ISSUE II:
WHETHER THE EX-PARTE DIVORCE DECREE COULD BE SET ASIDE?
ISSUE III:
WHETHER THERE WAS CRUELTY?
ISSUE IV:
WHETHER THERE WAS DESERTION?

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STATEMENT OF FACTS
*The Marriage*
Sushil and Ritu got married on 15th January, 2011 through Hindu rituals. After which they
lived in their matrimonial house at Karol Bagh, New Delhi. Like any elderly woman, Sushil’s
mother also had certain age old thinking and sayings, which they develop due to the
generation they come from and the atmosphere in which they had grown up, one of which
was that of having a wish to have a grandchild and if it could be a son it would be even better.
Also, being a mother she suggested that it would be good that if Sushil and Ritu have baby
without much delay.
*The Differences*
The couple had a baby girl on 15th July, 2012. With the passing time the differences between
the mother-in-law and Ritu started to increase, reason being the generation gap and a
difference in the point of views. As this gap kept on increasing, the misunderstandings also
increased, thus, Ritu interpreted each and every thing said by her mother-in-law in a negative
sense, resulting she perceived everything to be insulting and considered them to be taunts and
abusive remarks. Frustrated and infuriated with the day to day negative behaviour of Ritu, her
mother-in-law stated in the heat of the moment that she might remarry her son with another
girl. In all these situations, Sushil took stand for his wife and argued with her own mother
that he had no problem with having a baby girl neither with his wife.
*Deteriorated Marriage*
Ritu, started persuading Sushil to leave his parents and move out to a separate house of their
own. Ritu even started ignoring the household chores and Sushil’s parents. Also, she started
refusing for the sexual intercourse with Sushil. Due to the deteriorated conditions of his
home, the ugly turn in his marriage and the worsening relation between his wife and his
mother, Sushil started coming late from the office as well as he incorporated the habit of
drinking, and at times abused Ritu in frustration. Ritu kept on putting pressure on Sushil to
leave his parents, to which Sushil bluntly refused. This whole scenario created a depressing

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situation for Sushil. On 18th October, 2013, all of a sudden Ritu left her matrimonial house
and went back to her parents’ along with their minor daughter.
*The Efforts for the Revival of the Marriage*
Afterwards, Sushil visited her in laws house on 10th January, 2014 but he never found Ritu
there. He also tried to communicate to her on phone but that also went in vain. Ritu’s parents
never allowed her to meet Sushil. In order to save his marriage, Sushil filed an application
under Section 9 of the Hindu Marriage Act, 1955 for the Restitution of Conjugal Rights, to
which the Court passed the decree on 23th January, 2015. But, Ritu did not turn up for the
same. Sushil filed an execution of the decree, summons was issued to Ritu but the same were
returned and marked as “refused to accept”.
*No Alternative; Divorce Decree*
Finally, when left with no alternative, on 15th March, 2016, Sushil filed an application under
Section 13 of the Hindu Marriage Act, 1955 for divorce, which was considered as a
constructive notice by the Family Court. On 26th September, 2016, the Court granted an ex-
parte divorce decree in favour of Sushil. The copy of the said order was sent on the provided
address of Ritu. Sushil remarried on 25th March, 2016, and had a baby with her on 18th May,
2018. Now, almost approximately after five years of desertion, Ritu filed an application on 5th
Octobor, 2018 before the Delhi High Court for condonation of delay in filing appeal. The
Court condoned the delay and allowed the appeal. The case is now before the appellate court.

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SUMMARY OF PLEADINGS
ISSUE I: WHETHER THE APPEAL IS MAITAINABLE?
It is humbly submitted before the Honourable Court that the present appeal filed by the
appellant is not maintainable as the prescribed time period for filing the appeal had expired
and that there was no sufficient ground on part of the appellant for not complying with the
limitation period. The appellant knowingly stayed away from the proceedings and thus has no
justifiable cause for filing the appeal with a delay of two years.
ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?
It is humbly submitted before the Honourable Court that the ex-parte decree could not be set
aside as the decree had been passed on merits by the Family Court and with the compliance
of the provisions of C.P.C. It was the fault of the appellant that she did not care about the
proceedings, the summons from her known address were refused to accept which clearly
shows her default.
ISSUE III: WHETHER THERE WAS CRUELTY?
It is humbly submitted before the Honourable Court that there was no cruelty by the
respondent to the appellant; rather it is the respondent who had suffered mental cruelty due to
the constant acts of the appellant. The appellant through her acts caused mental cruelty to the
respondent at the time when she lived in her matrimonial home and also after she left as she
neither tried to make any contact nor responded to any of the efforts of the respondent.
ISSUE IV: WHETHER THERE WAS DESERTION?
It is humbly submitted before the Honourable Court that there was desertion by the appellant
of two years and five months by the appellant at the time when the respondent filed the
petition for divorce in the Family Court. Since the time the appellant left, there was no sign of
her that where she was, as there was no contact from her side, also there were no response to
the decree of R.C.R. as well.

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PLEADINGS
ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?
[1.1] Duration for filing an appeal under the Family Courts Act, 1984:
1. It is humbly submitted before the Honourable Court that the appeal filed by the appellant
wife is not maintainable as she had delayed in filing the appeal under all the available
remedial statues for the time being.
2. The Family Court Act, 1984 provides the provision for appeal as-
This Act was amended in the year 2003 after the observations made by the Supreme Court in
the landmark case of Savitri Pandey v. Prem Chandra Pandey,2 wherein they observed that
“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.”
 Appeal-
(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code
of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974)
or in any other law, an appeal shall lie from every judgment or order, not being an
interlocutory order, of a Family Court to the High Court both on facts and on law. -(1)
Save as provided in sub-section (2) and notwithstanding anything contained in the Code of
Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or
in any other law, an appeal shall lie from every judgment or order, not being an interlocutory
order, of a Family Court to the High Court both on facts and on law."
2
AIR 2002 SC 591.

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(3) Every appeal under this section shall be preferred within a period of thirty days from the
date of the judgment or order of a Family Court.3
[1.2] Duration for filing appeal under the Hindu Marriage Act, 1955:
1. Section 28(4) of the Act states as-
 Appeals from decrees and orders.—

(1) All decrees made by the court in any proceeding under this Act shall, subject to the
provisions of sub-section (3), be appealable as decrees of the court made in the
exercise of its original civil jurisdiction, and every such appeal shall lie to the court to
which appeals ordinarily lie from the decisions of the court given in exercise of its
original civil jurisdiction.
(4) Every appeal under this section shall be preferred within a [period of ninety days]
from the date of the decree or order.4
2. A contradiction occurred as to which limitation period is to be considered for filing the

appeal against an order or decree passed by the Family Court to the High Court, the Supreme
Court gave a judgement in 2013 which cleared all the contradictions related to this limitation
period.
3. In Shivram Dodanna Shetty vs. Sharmila Shivram Shetty,5 it was held that “Even if both
the Acts are considered on certain subjects and situations to be special and general, even then,
as a matter of sound interpretation and keeping in view the purpose for providing a larger
period of limitation, it must be construed that the appeals arising out of the judgment and
orders passed by the Family Court shall be governed by a larger period of limitation
prescribed under Section 28 (4) of the Act of 1955.” Thus, the limitation period provided
under Section 28(4) of the Hindu Marriage Act, 1955 is to be considered over Section 19 of
the Family Courts Act, 1984.”
[1.3] Appeal from an original decree and its limitation period:
1. The Code of Civil Procedure provides the right of appeal as follows-
 Appeal from original decree. –
3
Section 19, the Family Courts Act, 1984.
4
Section 28, the Hindu Marriage Act, 1955.
5
AIR 2017 Bom 1.

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(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 decree6 passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lay form 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 Court of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed (ten) thousand rupees.7
2. The limitation period for filing an appeal against an original decree is provided under the
Schedule attached with the Indian Limitation Act, 1963, which is as follows-
 116. Under the Code of Civil Procedure,1908-

(a) To a High Court8 from any decree or order;
 Limitation Period: Ninety days
 Time from which period begins to run: The date of the decree or order.9
[1.4] Timeline of the events:
1. The appellant left her matrimonial home on 18th October, 2013.10

2. The respondent filed a petition under Section 9, of the Hindu Marriage Act, 1955 for
the R.C.R. on 24th July, 2014.11
3. The Court passed the decree of R.C.R. under Section 9 on 23rd January, 2015.12
4. The respondent filed a petition for Divorce under Section 13 of Hindu Marriage Act,
1955 in the Family Court on 15th March, 2016.13
6
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 include-
(a)any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
7
Section 96, the Code of Civil Procedure, 1908.
8
Section 3(24), the General Clauses Act, 1897:
High Court used with reference to civil proceedings shall mean the highest Civil Court of appeal (not including
the Supreme Court) in any part of India in which the Act or Regulation containing the expression operates.
9
Article 116, Division II, Schedule, the Indian Limitation Act, 1908.
10 th
4 Line, Para 3, Moot Proposition.
11 th
12 th
9 Line, Para 3, Moot proposition.

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5. The Family Court granted divorce to the husband on 26th September, 2016.14
6. The respondent remarried on 25th March, 2017.15
7. The appellant filed an application for condonation of delay for filling appeal before
the Honourable Court on 5th October, 2018.16
The timeline clearly shows the time lag between the date of the decree and the application by
the appellant before the Honourable Court. The ex-parte divorce decree was granted by the
Family Court on 26th September, 2016, and the appellant had filed the application for filling
the appeal after a substantive delay of two years and nine days. Considering the same, the
limitation period for filing the appeal had passed under all the statutory provisions and thus
the maintainability of the appeal comes under question.
[1.5] Validity of the second marriage:
1. The respondent after having received the decree from a competent authority and after the
expiry of the limitation period of appeal had remarried and thus the second marriage could
not be rendered as null and void.
2. The Bombay HC observed “A Hindu can marry again after 90 days of the decree
dissolving his or her marriage, if no appeal has been made against the decree.”17
3. Through the present facts of the case it is very evident that the respondent had waited even
the prescribed limit for appeal of ninety days, he had a waited for almost six months before
remarrying to her present wife Kriti.
ISSUE II: WHETHER THE EX PARTE DIVORCE DECREE COULD BE SET

ASIDE?
[2.1] Filing of Written Statement and Ex-Parte Decree:
13
1st Line, Para 4, Moot Proposition.
14
6th line, Para 4, Moot Proposition.
15 th
16 st
17
Hindus can remarry 90 days after divorce: Bombay HC, Kanchan Chaudhari
Hindustan Times, (Dec 05, 2016 00:03 IST).

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1. It is humbly submitted before the Honourable Court that the respondent took all the
necessary measures in order to bring into the notice of the appellant about the hearing; he had
sent the summons at all the stages, whether it was at the time of the hearing of the Restitution
of Conjugal Rights or the hearing under Section 13. It was the appellant who was not diligent
about her rights and was not at all considerate about the fact that a decree had to be passed
within time, or even when the decree was passed, the time for the appeal is passing by every
passing day. The appellant left the matrimonial home on 18th October, 2012; thereafter she
never made any contact with the respondent even when the respondent tried to do so. For
almost six years she made no efforts on her part either to revive her marriage or to even care
that what all had happened within those six long years. All of a sudden she came back with
an application before the Honourable Court on 5th October, 2018, giving the reasoning that
she got to know about everything through a common friend, which makes the fact
questionable that how come she could know about the two subsequent proceedings through
some common link.
2. The Code of Civil Procedure provides a proper course of procedure that needs to be
followed whenever there is a dispute of civil nature between the litigating parties. Order VII
and Order VIII respectively provide the procedure for filing the plaint and written statement
respectively. Also, they provide the time period in which these had to be filed and what are
the consequences of the non-filing.
3. O. VIII, R. 1 provides that the defendant has to file the written statement within a period of
thirty days.
 Written statement:
The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day, as may be specified by the
Court, for reasons to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons.]18
18
Order VIII, Rule 1, the Code of Civil Procedure, 1908.

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4. O. VIII, R. 10 enumerates the consequence of non-compliance of the above mentioned
rule-
Procedure when party fails to present written statement called for by Court
Where any party from whom a written statement is required under rule 1 or rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, the
Court shall pronounce judgment against him, or make such order in relation to the suit as it
thinks fit and on the pronouncement of such judgment a decree shall be drawn up.19
5. The O. IX, R. 6 states as follows:
 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 shall be heard ex parte;]20
[2.2] Refusal to accept the summons:
1. O. V, R. 17 states as-
 Procedure when defendant refuses to accept service, or cannot be found
“Where the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgment, 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 staling that he has so affixed the copy, the circumstances
19
Order VIII, Rule 10, the Code of Civil Procedure, 1908.
20
Order IX, Rule 6, the Code of Civil Procedure, 1908.

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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.”21
2. O. V, R. 9 states as follows:
 Delivery of summons22 by Court-

(1) Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the Court otherwise
directs, be delivered or sent either to the proper officer to be served by him or one of
his subordinates or to such courier services as are approved by the Court.
(5) When an acknowledgment or any other receipt purporting to be signed by the
defendant or his agent is received by the Court or postal article containing the
summons is received back by the Court with an endorsement purporting to have been
made by a postal employee or by any person authorised by the courier service to the
effect that the defendant or his agent had refused to take delivery of the postal article
containing the summons or had refused to accept the summons by any other means
specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the
summons shall declare that the summons had been duly served on the defendant.23
3. In Mariammal v. Lakshmanam, AIR 1959 Ker 297, the court held that “where the
summons sent by registered post is returned with an endorsement ‘refused’, the burden is on
the defendant to prove that the endorsement is false.”24
4. In Nirmalabala Dehi v Provat Kumar Basu, it was held by the Calcutta High Court, that a
letter sent by registered post, with the endorsement "refused" on the cover, could be
presumed to have been duly served upon the addressee without examining the postman who
had tried to effect service. What was held there was that the mere fact that the letter had come
back with the endorsement "refused" could not raise a presumption of failure to serve. n the
other hand, the presumption under Section 11425 of the Evidence Act would be that, in the
21
Order V, Rule 17, the Code of Civil Procedure, 1908.
22
“A summon is a document issued from the office of a court of justice, calling upon the person to whom it is
directed to attend before a judge or officer of the court for a certain purpose.”
Earl Jowitt, The Dictionary of English Law (1972) at p. 1700.
23
Order V, Rule 9, the Code of Civil Procedure, 1908.
24
Civil Procedure Code with Limitation Act, 1963, C.K.Takwani, Eighth Ed., EBC Explorer, p. no. 249.
25
Section 114, the Indian Evidence Act, 1872.

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ordinary course of business, it was received by the addressee and actually refused by him.
This is also a correct statement of the law.26
5. In Salem Municipality v. P. Kumar, the court held that “It is no doubt true that under
Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs
once shown to have prevailed. It is open to the court under Section 114 to presume the
continuity of any fact once shown to have prevailed. Such presumption of continuity can be
drawn not only forward but backward also. Court can presume that such state of affairs might
have existed in past also unless discontinuity is proved.”27
6. In Prakash Chander vs. Smt. Sunder Bai and Anr.,28 “The court had recorded that the
summons was sent through registered post to the defendant, which returned with an
endorsement of refusal. Thereupon, the court ordered to proceed under Order 9. Rule 6,
C.P.C. It may be stated that the court had in its view the provision of Order 9, Rule 6, which
lays down that where the defendant does not appear when suit is called on for hearing, then if
it is proved that the summons was duly served, the court may make an order that the suit be
heard ex parte.”
7. In Pakharsingh v. Kishansingh,29 The notice was sent by the plaintiff to the defendant,
which returned with an endorsement of refusal. There was only bare denial of the defendant
in his statement and in that connection it was observed that the defendant's bare denial is
wholly insufficient to rebut the presumption. In the present case there is the testimony of the
postman as well. Thus, on the second ground, the revision petition is not maintainable.
Court may presume existence of certain facts. —The Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case.
Section 4, the Indian Evidence Act, 1872:
"May presume"
Whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it:
"Shall presume" – Whenever it s directed by this Act that the Court shall presume a fact, it shall regard such
fact as proved, unless and until it disproved;
"Conclusive proof" – When one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of
disproving it.
26
Puwada Venkateswara Rao vs. Chidamana Venkata Ramana, MANU/SC/0493/1976.
27
Section 114 Evidence Act: Presumption Of Continuity Can Be Drawn Not Only Forward But Backward Also:
SC, Ashok Kini, Live Law, (8 Dec 2018, 11:25 AM).
https://www.livelaw.in/section-114-evidence-act-presumption-of-continuity-can-be-drawn-not-only-forward-
but-backward-also-sc-read-order/
28
AIR 1979 Raj 108.
29
AIR 1974 Raj 112.

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8. In the case of Badamilal v. Harshvardhan, AIR 1994 Raj 9, the summons were returned
with an endorsement of refusal which were held to be sufficient and it was considered that
there was no illegality in passing of the ex-parte decree.30
ISSUE III: WHETHER THERE WAS CRUELTY?
[3.1] Definition of Cruelty:
1. It is humbly submitted before the Honourable Court that marriage is a union done with
sacramental aspects, thus it comes with a duty on each spouse to have mutual respect and
care for the other, thus any such done or intended to be done with an intention to cause
sufferance to the other would amount to cruelty. Cruelty is an act inflicted on a person which
puts physical as well as mental implication on the sufferer. It includes any such acts, gestures,
words, etc. that may put a person in such a position wherein he suffers pain which also
includes the mental pain.
2. Black’s Law Dictionary defines cruelty as The Intentional and malicious infliction of
physical suffering upon living creatures, particularly human beings; or, as applied to the
latter, the wanton, malicious, and unnecessary infliction of pain upon the body, or the feelings
and emotions; abusive treatment; inhumanity; outrage. Chiefly used in the law of divorce, in
such phrases as “cruel and abusive treatment,” “cruel and barbarous treatment,” or “cruel and
inhuman treatment,” as to the meaning of which, and of “cruelty” in this sense.31
3. In Ravi Kumar v. Julmi Devi,32 the apex court held that “cruelty has no definition: in fact
such definition is not possible. Cruelty in matrimonial cases can be of infinite variety. It
defies any definition and its categories can never be closed. In other words, the concept of
cruelty is very subjective- varying with time, place and persons.
4. In Pawna Devi v. Chuni Lal,33 the court held that “It may be appropriate to point out here
that cruelty has not been defined under the Hindu Marriage Act (hereinafter referred to as the
'Act') and there can be no strait-jacket formula so as to define the cruelty as it would depend
upon on number of circumstances and facts of the case.”
30
The Code of Civil Procedure, 1908, Bare Act with short notes, Universal Law Publishers, p. no. 97.
31
The Law Dictionary, Featuring Black’s Law Dictionary Free Online Legal Dictionary 2 nd Ed., (February 28,
2019, 22:26 PM).
32
(2010) I DMC 411 SC.
33
II (1998) DMC 1.

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5. In Vishwanath Sitram Agarwal v. San. Sarle Vishwanath Agarwal,34held that “Moreover,
to establish legal cruelty, it is not necessary that physical violence should be used. Concept of
cruelty differs from person to person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position, social status, customs,
traditions, religious belief, human values and their value system.”
[3.2]The acts that amount to cruelty:
1. The respondent through her acts and words kept on inflicting mental pressure on the
petitioner, firstly, she left the house without any notice, and then she did not made any efforts
to meet the respondent. Also, she did not comply with the decree of the Restitution of
Conjugal Right. All of these acts show that she made it difficult for the respondent to
continue with the marriage anymore and caused mental cruelty to him in the whole process.
Thus, he filed an application for the grant of divorce under Section 13(1) (i-a)35 which states
that “any marriage solemnised, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party - has, after the solemnisation of the marriage, treated the
petitioner with cruelty;” “Mental cruelty in Section 13(1) (i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and suffering as would make it
not possible for that party to live with the other. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to live together.”36
2. In G.V.N. Kameswara Rao v. G. Jabilli37"Cruelty can be said to be an act committed with

an intention to cause sufferings to the opposite party and it has become intolerable for other
to suffer any longer and to live together is impossible. This is to be judged not from a solitary
incident, but on an overall consideration of all relevant circumstances. Austerity of temper,
rudeness of language, occasional outburst of anger may not amount to cruelty, though it may
amount to misconduct."
34
AIR (SC) 2586:2012 (7) SCC 288.
35
The Hindu Marriage Act, 1955.
36
V. Bhagat v. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337.
37
AIR 2002 SC 576.

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3. In Samar Ghosh v. Jaya Ghosh,38 the apex court discussed the concept of mental cruelty
in a detailed manner, one of the observations was that “Where there has been a long period of
continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.
The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like situations, it may lead to
mental cruelty.” In the present scenario, the appellant left the house on 18th October, 2013,
after which she did not made any contact with the respondent, neither did she respond to any
of the efforts made by the respondent. Now, after five years of separation she had come back
on 5th October, 2018. For any normal prudent person continuing again after such a long
separation would be difficult, as the marriage had broken down beyond repair.
4. The appellant wife left her matrimonial house on the ground that she was suffering with
mental cruelty due to the constant taunting and remarks by her mother in law, and for that
reason she left just in order to teach her a lesson. The High Court in the case of Haresh
Lalsingh Gadhavi v State of Gujarat, 39“that rude and uncultured behaviour and perfunctory
abuses are mundane matters and they are not so serious an offence that could attract of
cruelty on part of the in laws.”
[3.3] Denial from sexual intercourse and withdrawal from household chores as an act of
cruelty:
1. Marriage is a union where both the parties imbibe mutual care, respect and concern of each
other. Here, the respondent had to suffer and go through mental cruelty due to a number of
acts and gestures of his appellant wife. She had differences with the mother of respondent and
for that purpose she behaved improperly with the respondent as well as with his parents. The
respondent even had argued with his own mother in order to support his appellant wife but
then too she inflicted constant pressure on him to live separately and also was not agreeing
for the consummation of the marriage.
2. In Narendra v. K. Meena,40 the Court held that “The persistent effort of the Respondent
wife to constrain the Appellant to be separated from the family would be torturous for the
38
2007 ( 4 ) ALD 11 ( SC ).
39
Taunting, rudeness by in-laws is mundane, not cruelty: HC, Saeed Khan, ( Nov 27, 2015, 15:30 IST).
40
AIR 2016 SC 4599.

TEAM CODE-19
husband and in our opinion, the trial Court was right when it came to the conclusion that this
constitutes an act of 'cruelty'.”
3. In Samar Ghosh v. Jaya Ghosh,41, the court held that “Sustained reprehensible conduct,
studied neglect, indifference or total departure from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic pleasure can also amount to mental
cruelty.” It further observed that “Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or valid reason may amount
to mental cruelty.” Here, the differences with the mother of the respondent could not be
considered as a sole and justifiable reason for the denial of intercourse with the respondent.
Similar observation was laid down by the apex court in the case of Vidhya Vishwanathan v.
Kartik Balakrishnan,42 that “Undoubtedly, not allowing a spouse for a long time, to have
sexual intercourse by his or her partner, without sufficient reason, itself amounts mental
cruelty to such spouse.”
4. In S. Indrakumari v. S. Subbaiah,43 it was held that “willful denial of sexual relationship

by a spouse, when the other spouse is anxious for it, would amount to mental cruelty,
especially when the parties are young and newly married.”
5. In Shobha Rani v. Madhukar Reddi, 44

“the Supreme Court has held that the expression
"treated the petitioner with cruelty" as used in Section 13(1) (i-a) of the said Act is used in
relation to human conduct or human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. The Supreme Court had further observed that "cruelty
may be mental or physical, intentional or unintentional." Here, the appellant wife was
denying performing any of her matrimonial duties, she was ignorant to her in laws and the
household work.
[3.4] No willingness of wife to return to matrimonial home:
1. The acts of the appellant wife depict that she was not willing to resume her marriage
neither any of her efforts were of that nature. Even when the respondent tried to contact her
and went to meet her she did not come ahead to meet as well. Thereafter, the respondent still
41
Ibid.
42
AIR 2015 SC 285.
43
2003 (1) CTC 259.
44
(1988) 1 SCC 105.

TEAM CODE-19
filed a application under Section 9 of the Hindu Marriage Act,45 but the appellant wife did not
turn up even after decree of Restitution of Conjugal Rights. Thus, finally left with no other
option and after such a long period of sufferance, respondent had to file a decree of divorce.
2. In Sudhanshu Mauli Tripathi son of Sri Umakant Tripathi vs. Meena Kumari Daughter
of Parmanand Pandey and Nandan Dubey,46 “son of Shri Dinesh Dubey the act of
respondent No. 1 in neither willing to return to the matrimonial home nor willing to allow a
peaceful divorce to the petitioner, proves beyond any doubt that there is no chance of
marriage being retrieved and continuance of such marriage would itself amount to cruelty.”
3. In Sujoy Ghosh Dastidar vs. Dayita Ghosh Dastidar,47 the Jharkhand High Court held that
“Continuous desertion on the part of the respondent is reflective of her indifference or total
departure from the normal standard of conjugal relationship. In such state of fact, it may also
amount to mental cruelty upon the other spouse.”
4. In Vijay Vathvi vs. Chhaya Vathvi,48 the court dealt with a similar situation and observed
and thereafter held in the favour of the husband stating that “She practised mental cruelty
with the appellant because she was not performing obligation of marriage. She has deserted
the appellant, hence, in our opinion; the appellant is entitled to receive decree of divorce.”
ISSUE IV: WHETHER THERE WAS DESERTION?
[4.1] Meaning of Desertion:
1. It is humbly submitted before the Honourable Court that in a sacramental union like
marriage, where the presence of a spouse not only physically as well as consciously is very
45
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the
other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the
court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation,
Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden
of proving reasonable excuse shall be on the person who has withdrawn from the society.]
46
2010 (58) BLJR 195.
47
II (2018) DMC 439 Jhar.
48
II (2018) DMC 545 MP.

TEAM CODE-19
important. If any of the spouses withdraws from the society of other, it puts a lot of strain on
the sustainability of the wedlock and thus at times becomes the ground for divorce.
2. Desertion is not only leaving someone physically, rather it is a withdrawal from a state of
things. It is a situation where the spouse leaves without any substantial ground; it leaves in
such a manner wherein he/she does not care about the condition of the other. According to
the Halsbury Laws of India, desertion means “total repudiation of the obligation of
marriage.”49 The Merriam-Webster Dictionary defines desertion as: “An act of deserting,
especially: the abandonment without consent or legal justification of a person, post, or
relationship and the associated duties and obligations.”50
3. The Explanation attached to the Section 13(i-b) of the Hindu Marriage Act, 1955 defines
desertion as “The expression “desertion” means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent of or against the
wish of such party, and includes the willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expressions shall be construed
accordingly”.
In Savitri Pandey v. Prem Chandra Pandey,51held that “Desertion for the purpose of seeking
divorce under the Act means the intentional permanent forsaking and abandonment of one
spouse by the other without the other’s, consent and without reasonable cause.” It further held
that “Desertion is not a single act complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case.”
[4.2] Elements of Desertion:
1. In Bipinchandra Jai Songhbhai Shah v. Prabhavati,52 the court enumerated the two
essential conditions that need to be proved for the ground of desertion, that are as follows-
(i) the factum of desertion
(ii) the intention to bring cohabitation permanently to an end (animus deserendi)
Further, they held that there are two important elements for the deserted spouse-
49
Halsbusry’s Laws of India: Volume 26 (New Delhi: Butterworth’s, 2007) at 267.
50
Definition of Desertion by Merriam-Webster, https://www.merriam-webster.com/dictionary/desertion
51
(2002)2 SCC 73, p. 80.
52
AIR 1957 SC 176.

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(i) The absence of consent; and

(ii) Absence of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid.
2. In the present case, the appellant wife left the matrimonial home without the consent of the
respondent husband. Thereafter, when the respondent went to her paternal home to meet her,
she did not turn up to meet him, also she did not contact to him on phone. Even after the
decree of Restitution of Conjugal Rights she did not come back to resume the marriage, these
chain of events inserted a reasonable cause in the mind of the respondent that the appellant
had the intention to desert the matrimonial relation.
3. In Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi Desertion,53 in the context of
matrimonial law represents a legal conception. It is difficult to give a comprehensive
definition of the term. The essential ingredients of this offence in order that it may furnish a
ground for relief are:
(i) The factum of separation

(ii) The intention to bring cohabitation permanently to an end- animus deserendi;
(iii) The element of permanence which is a prime condition requires that both these
essential ingredients should continue during the entire statutory period;
[4.3] Acts that amount to desertion:
1. In Savitri Pandey v. Prem Chandra Pandey, 54, the Court held that “To prove desertion in
matrimonial matter it is not always necessary that one of the spouse should have left the
company of the other as desertion could be proved while living under the same roof.
Desertion cannot be equated with separate living by the parties to the marriage. Desertion
may also be constructive which can be inferred from the attending circumstances. It has
always to be kept in mind that the question of desertion is a matter of inference to be drawn
from the facts and circumstances of each case.”
2. In Lachman Utamchand Kirpalani v. Meena alias Mota,55 the High Court of Orissa
observed that “To prove desertion in matrimonial matter, it is not always necessary that one
53
AIR 2002 SC 88.
54
Ibid.
55
AIR 1964 SC 40.

TEAM CODE-19
of the spouses should have left the company of the other as desertion could be proved while
living under the same roof. Desertion cannot be equated with separate living by the parties to
the marriage. Desertion may also be constructive which can be inferred from the attending
circumstances. It has always to be kept in mind that the question of desertion is a matter of
inference to be drawn from the facts and circumstances of each case.” In our case if we
analyse the circumstances before and after the appellant wife left the matrimonial home, it
could be clearly observed that she even before leaving had started to do certain acts that were
a clear indication of desertion, the instances were majorly of her withdrawing from her
marital obligations such as denying to contribute in the household chores, ignoring the in
laws and not agreeing for the sexual intercourse with the respondent.
[4.4] Desertion as a ground of divorce:
1. Desertion forms a ground for divorce under the Hindu Marriage Act, 1955; Section 13(1)
(i-b) states that:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition
2. Thus the provision makes it clear if there had been a desertion by any of the spouses for
more than two years then the other can file an application for divorce on the ground of
desertion. Here, the appellant wife left the respondent on 18th October, 2013. Thereafter, the
respondent numerous efforts to get her back to resume the marriage again, but she showed no
response to it. Meanwhile, husband even took the judicial help but that too was ignored by
the appellant. There was no sign from her side that could show even a slightest hint that she
was interested in resuming the marriage. Only after she got the news of the second marriage
of the respondent that too after the decree had been passed by a competent authority, that she
came back on 5th October, 2018 with an application for setting aside the decree.
3. After the amendment, the ground for desertion for claiming divorce under Section 13(1)
(ib) of the Hindu Marriage Act, 1955 requires that one of the spouse who has been deserted

TEAM CODE-19
by the other for a continuous period of two years immediately preceding the date of the
presentation of the divorce petition is entitled to a decree of divorce.56
56
Ashish Kumar Dwiwedi v. Swati Tiwari, 2018 (6) ALJ 699.

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PRAYER
In the light of the facts stated, issues raised, authorities cited and pleadings advanced, the
Counsel for the Respondent humbly prays that Hon’ble Court be pleased to adjudge, hold and
declare:
 That the appeal application filed by the Appellant is not maintainable in the court of
law.
 That the ex-parte divorce decree passed by the Family Court not to be set aside.
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 Respondent)

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4TH RBUSL NATIONAL MOOT COURT COMPETITION, 2019

4TH RBUSL NATIONAL MOOT COURT COMPETITION, 2019

THE HON’BLE HIGH COURT OF DELHI

CIVIL APPEAL NO.____ OF 2019

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

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

MEMORANDUM ON BEHALF OF THE RESPONDENT

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

[1] WHETHER THE APPEAL IS MAINTAINABLE?

[1.3] Appeal from an original decree and its limitation period…………………15

[1.4] Timeline of the events………………………………………………………..16

[1.5] Validity of the second marriage……………………………………………..17

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

[2.1] Filing of Written Statement and Ex-Parte Decree…………………………17

[2.2] Refusal to accept the summons……………………………………………...19

[3] WHETHER THERE WAS CRUELTY?

[3.1] Definition of Cruelty………………………………………………………...22

[3.2]The acts that amount to cruelty……………………………………………..23

[3.4] No willingness of wife to return to matrimonial home…………………….25

MEMORANDUM ON BEHALF OF RESPONDENT Page 2

[4] WHETHER THERE WAS DESERTION?

[4.1] Meaning of Desertion……………………………………………………….26

[4.2] Elements of Desertion……………………………………………………….27

[4.3] Acts that amount to desertion………………………………………………28

[4.4] Desertion as a ground of Divorce ………………………………………….29

MEMORANDUM ON BEHALF OF RESPONDENT Page 3

MEMORANDUM ON BEHALF OF RESPONDENT Page 4

MEMORANDUM ON BEHALF OF RESPONDENT Page 5

 CASE LAWS CITED:

MEMORANDUM ON BEHALF OF RESPONDENT Page 6

S.NO. NAME OF BOOKS

1. The Limitation Act, 1963

MEMORANDUM ON BEHALF OF RESPONDENT Page 7

MEMORANDUM ON BEHALF OF RESPONDENT Page 8

MEMORANDUM ON BEHALF OF RESPONDENT Page 9

WHETHER THE APPEAL IS MAINTAINABLE?

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

WHETHER THERE WAS CRUELTY?

WHETHER THERE WAS DESERTION?

MEMORANDUM ON BEHALF OF RESPONDENT Page 10

MEMORANDUM ON BEHALF OF RESPONDENT Page 11

*The Efforts for the Revival of the Marriage*

*No Alternative; Divorce Decree*

MEMORANDUM ON BEHALF OF RESPONDENT Page 12

ISSUE I: WHETHER THE APPEAL IS MAITAINABLE?

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

ISSUE III: WHETHER THERE WAS CRUELTY?

ISSUE IV: WHETHER THERE WAS DESERTION?

MEMORANDUM ON BEHALF OF RESPONDENT Page 13

ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

MEMORANDUM ON BEHALF OF RESPONDENT Page 14

1. Section 28(4) of the Act states as-

 Appeals from decrees and orders.—

2. A contradiction occurred as to which limitation period is to be considered for filing the

[1.3] Appeal from an original decree and its limitation period:

1. The Code of Civil Procedure provides the right of appeal as follows-

 Appeal from original decree. –

The Efforts for the Revival of the Marriage

No Alternative; Divorce Decree