Shivananda Moot Court Final.docx

MEMORIAL FOR APPELLANT TABLE OF CONTENTS List of Abbreviations … … … … … … … ... ... ... ... 02 Index of Authorities / Table of Cases … … … … … 03 Statement of Jurisdiction … … … … … … ... ... ... .. 04 Statement of Facts … … … … … … … ... ... ... ... ... 05 Statement of Issues… … … … … … … ... ... ... ... .. 06 Summary of Arguments … … … … … … … ... ... .. 07 Arguments Advanced/Detailed Arguments... ... ... ...

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Issue 1 … … … … … … … … … ... ... ... ... ... ... ... 08-09 Issue 2 … … … … … … … … … ... ... ... ... ... ... ... 10-11 Prayer … … … … … … … … … ... ... ... ... ... ... ...

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MEMORIAL FOR APPELLANT List of Abbreviations AIR............................................................................................All India Report sec............................................................................................Section HC............................................................................................High Court Hon’ble.....................................................................................Honourable SC............................................................................................Supreme Court SCC.........................................................................................Supreme Court Case u/s……………………………………………………………. Under section

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MEMORIAL FOR APPELLANT

INDEX OF AUTHORITIES STATUTES 1. The Hindu Marriage Act, 1955 2. The Indian Penal Code,1860 3. The Dowry Prohibition Act,1961 4. The Family Courts Act,1984

TABLE OF CASES 1. Rama Kanta vs Mohinder Laxmidas Bhandula (1995) 2 HLR 315 2. Manish Aggarwal v. Seema Aggarwal, 2012(192) DLT 714 3. Lata kamat v. Vilas AIR 1989 SC 1477

COMMENTARIES, DIGESTS &BOOKS 1. Hindu Law by Dr S R Myneni 2. Law of Marriage , Divorce by P C Pant 3. Hindu Law by R.K Agarwal

LEXICONS 1. Black’s law dictionary by B.A. Garner, 9th edition

LEGAL DATABASE 1. http://manupatra.com 2. https://login.westlawindia.com

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MEMORIAL FOR APPELLANT

STATEMENT OF JURISDICTION THE APPELLANT HAS THE HONOUR TO SUBMIT BEFORE THE HON’BLE HIGH COURT, THE MEMORANDUM FOR THE APPELLANT IN THE MATTER OF CIVIL APPEAL PETITION NO. ***/2018 FILED BY THE APPELLANT, UNDER SECTION 19 OF THE FAMILY COURTS ACT 1984. THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE.

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MEMORIAL FOR APPELLANT STATEMENT OF FACTS 1. The Respondent Kumar Prashant was working as a Sr. Executive in a Multinational Corporation. Varsha (Appellant) was also an employ who worked as a Graduate Trainee in the same company. 2. They became friends and subsequently this friendship was solemnized into marriage with the blessings of their families 01.09.2005.

3. After the marriage, they lived happily together for quite some time. However, this happiness was short-lived as Varsha was abused by Mother and sister of Kumar with filthy language and was accused for not bringing enough jewellery and valuables and also remaining absent from the house. 4. Later on detection of pregnancy, Varsha, went to her matrimonial house on 02.01.2006 and thereafter gave birth to a male child on 31.07.2006 and even Kumar was not informed about functions of the new born baby like sathi puja and Akoesia.

5. In spite of all these Kumar tried to resolve through mediation of friends and when he failed to do so, he filed a civil case Restitution of conjugal Rights before District Family court, Cuttack. 6. On the other hand Varsha also filed a complaint u/s 498-A of Indian Penal Code and Dowry Prohibition Act, 1961.

7. Later on 11.06.2007 Kumar came to know about the early marriage of his wife with a person namely Rajnish Thakur on 30.11.2000 under Hindu rites and such was confirmed from office of the Registar of Marriages, Cuttack. 8. Accordingly, the respondent, Kumar Prasanth filed a petition U/s 12(1) (c) of the Hindu Marriage Act, 1955 for annulment of his marriage.

9. The learned Judge of the Family Court held that the marriage between the Kumar and Varsha was Null and Void. 10. Being aggrieved with the judgment of the Family Court, the Opp. Party (in the court bellow), Varsha (Appellant) preferred an appeal before this Hon’ble High Court.

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MEMORIAL FOR APPELLANT

STATEMENT OF ISSUES ISSUE-I Whether the Case is maintainable or not?

ISSUE-II Whether the marriage is a valid marriage or not?

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MEMORIAL FOR APPELLANT

Summary of Arguments 1-Whether the Case is maintainable or not? It is most humbly submitted before the Hon’ble court that the appeal is maintainable in the eye of law U/S 19 of Family Court Act, 1984 and 28 of Hindu Marriage Act, 1955. 2-Whether the marriage is valid or not? It is humbly submitted before the Hon’ble court that, the marriage between the appellant and the respondent is a valid marriage on the ground that it doesn’t fulfill the basic requirement of the section 12 (1) (c) of Hindu Marriage Act, 1955.

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MEMORIAL FOR APPELLANT Arguments Advanced/Detailed Arguments

1-Whether the Case is maintainable or not? It is most humbly submitted before the Hon’ble court that the appeal is maintainable in the eye of law U/S 19 of Family Court Act, 1984 and u/s 28 of Hindu Marriage Act, 1955. Section 19(1) of Family Court Act defines Appeal which may be read as follows “(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. “ It is further submitted that order given by the District Family court regarding the validity of marriage is not an interlocutory order. It is final in nature and hence appeal is maintainable against the said order… “The Family Court does not really pass an interlocutory order as the order gives finality to the issue raised in the application. It may technically come under the definition of an interlocutory order, yet it has trappings of a “judgment” as it decides the issue finally between the parties. Since it is a judgment, it would be appealable under Section 19 (1) of the said Act.”1 It is further submitted by the petitioner that the appeal is also maintainable under section 28 of Hindu Marriage Act, 1955. Section 28(1) of Hindu Marriage Act, 1955 denotes(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

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Manish Aggarwal v. Seema Aggarwal, 2012(192) DLT 714

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MEMORIAL FOR APPELLANT 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. The Counsel Humbly submits that order passed u/s 12(1) (c) Of The Hindu Marriage Act is hence challengeable. The order given by the District family court is the final order and having executioner effect and the Hon’ble High court is having original civil jurisdiction in the instance case in hand. The view was held by the Honourable Apex court2 stating that The legislature is its wisdom has enacted sec 28 conferring a right of appeal which is unqualified, unrestrictive and not depending on the mercy or desire of a party against all decrees in any proceeding under this act which will include a decree u/s 11, 12, 13 of Hindu Marriage Act.

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Lata kamat v. Vilas AIR 1989 SC 1477

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MEMORIAL FOR APPELLANT

2-Whether the marriage is valid or not? It is humbly submitted before the Hon’ble court that, the marriage between the appellant and the respondent is a valid marriage on the ground that it doesn’t fulfil the basic requirement of the section 12 (1) (c) of Hindu Marriage Act, 1955.It is submitted that the instant appeal regarding the validity of the marriage a question is raised by the opposite party under section 12 (1) (c) of the Act having the contention of suppressing the fact of the ex-marriage of the appellant and obtaining the consent of the opposite party by fraud. Section 12 (1) (c) reads’ that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The fact and the circumstances upon which the opp. Party relied to prove the occurrence of fraud is, “But on 11.06.2007, the petitioner, Kumar was shocked to learn that the Opp. Party, Varsha had married to one Mr. Rajnish Thakur earlier on 30.11.2000 which was confirmed from the office of the Registrar of Marriages, Cuttack.” As contained by the opposite party this fact regarding the ex-marriage of the appellant was not within the knowledge of the husband at time of giving consent for the marriage. This contention is not acceptable as because the appellant and respondent were working in the same office and after a reasonable time of friendship, choose to marry each other. Thus, this contention of having no knowledge regarding any such pre-marriage prior to their marriage is vague, embellished and not creditworthy. 10

MEMORIAL FOR APPELLANT

The general tendency of the courts in cases dealing with fraud seems to be to sustain a marriage as far as possible. But in the present case, there was no application of judicial mind by the learned Judge, While no doubt this is a laudable object it is also to be remembered that by their reluctance to set aside a marriage brought about by fraud the courts may be indirectly encouraging fraud. The court test to be applied is whether the fraud relates to a material fact. Applying that test it would appear that decisions upholding marriages in the cases of concealment of serious diseases or where a person is made to marry one different from the person shown before the marriage require reconsideration.3

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Rama Kanta vs Mohinder Laxmidas Bhandula (1995) 2 HLR 315

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MEMORIAL FOR APPELLANT PRAYER Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble Court, that it may graciously be pleased:

1. To allow the appeal, 2. Declare the marriage to be valid, and 3. Pass any other order it deems fit in the interests of justice, equity and good conscience All of which is most humbly and respectfully submitted.

Place: Date: _/_, 2018

s/d Moot Counsels For Appellant

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MEMORIAL FOR APPELLANT

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