Moot Competition
Moot Competition
Submitted by
4. Pradeep T. S. 13551055
5. Rajesh G. 13551063
BETWEEN
AND
Nilanjan Respondent
3
LIST OF ABBREVIATIONS
AIR All India Reporter
HC High Court
SC Supreme Court
Ors Others
TABLE OF CASES
1. AIR 1950 Eugene Berthinume V Dame Anne Marrie
11. Khambatta v.Khambatta AIR 1935 bum 5 1934,36 Bom LR 1021, 1905
13. R.V.Hammersmith
14. starkowski V AG
19. Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619)
5
20. Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341)
23. U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008,
(Arising out of SLP (C) No. 11785 OF 2007)
24. Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20
29. Ahmed Kasim Molla vs. Khatun Bibi, ILR 59 Cal 833
31. Saleem Basha vs. Mumtaz Begam, 1998 Cri. L.J. 4782
35. Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982 Bom
39. Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR 1994 SC
135
6
43. U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008
44. Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20
45. Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099
48. Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors on 20 December, 2002
7
INDEX OF AUTHORITIES
List of Statutes
1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954
3. Hindu Succession (Amendment) Act, 2005
4. Private International Law
5. Muslim Law
Dictionaries
Black's Law Dictionary, 7th Edition
Web sites
1. www.advocatekhoj.com
2. www.Indiakanoon.com
3. lawyerssclubindia.com
4. www.scconline.com
8
To
The Humble petition of the Petitioner above named Most Respectfully Showeth
The revision petition is directed against the order dated ------------ passed by
Judge -------------------- in ---------------- case No---------- whereby application
under Section ----------filed by present petitioner was dismissed.
The application of petitioner Sm.Emily and Smt. Anjali was dismissed by the
--------- Court. Being aggreived with the aforesaid order of --------- court, the
petitioners had preferred this revision petition before this court as ------------ but
if appears that D-------------------- was made and it was subsequently described as
--------------------------
9
STATEMENT OF FACTS
1. Emily Dickens, English Writer, met Amir Iqbal, Indian poet at the Royal
Asiatic Society meeting held in London. They fell in love and married
soon thereafter in the civil ceremony at the Royal Pavilion, Brighton on
December, 16, 1966 in England according to the requirements of English
Law. At the time of the marriage the husband was a Muslim, domiciled in
India, and the wife was a Christian, domiciled in England; after the
marriage, Emily acquired her husband’s domicile.
6. Emily and Jamini liked each other and on finding each other suitable, they
decided to get married. Emily became a Hindu and began practising
Hinduism. On May 8, 1975, Emily and Jamini, got married in London, in
a religious ceremony according to Hindu rites. At the time of the marriage,
both were domiciled in India.
9. In June 2006, Nilanjan Rai, Jamini’s son from his first marriage, filed a
suit before the District Court, Hyderabad, for a declaration that he is the
sole successor to both the immovable as well as movable property of
Jamini Rai. The suit was challenged by Emily along with Anjali, claiming
that they are the legal heirs of Jamini Rai and that they were entitled to a
share in all the property of Jamini Rai.
10.The trial court accepted Nilanjan’s contention that Emily was not the
lawful wife of Jamini Rai as her earlier marriage was not dissolved
according to civil marriage law of England and the triple talaq divorce of
Emily’s first marriage was invalid, rendering her subsequent marriage to
Jamini void. Therefore, it was held that Emily would not inherit any share
in Jamini’s property.
11
11. The Court further held that Anjali being the illegitimate child of Jamini
Rai, Nilanjan will remain the sole successor to his father’s ancestral
property. The trial court ruled in his favour, stating that while Anjali could
inherit her father’s self - acquired property she was not entitled to a share
in her father’s ancestral property.
12. On appeal, the High Court upheld the order of the trial court. However,
noting the complexity of the case and for further clarification of the legal
issues involved in the case, leave to appeal under Article 136 was granted
PRAYER
1, Whether the first marriage and divorce of the petitioner is valid, as per law?
2, Whether the second marriage of the petitioner, as per the Hindu law, is valid?
3. Whether the petitioner’s entitled to get both ancestral property and self
acquired property?
SUMMARY OF ARGUMENTS
FOR PETITIONER
ISSUES PRESENTED
• Whether the first marriage and divorce of the petitioner is valid, as per law.
The Petitioner,a christian domiciled in England, married her husband,who is a
muslim domiciled in India, in a civil ceremony, on December 16 , 1966, according to
the requirements of English law. The Petitioner later acquired her husband's domicile
and embraced Islam.
The British marriage Act,1949 recognises Civil ceremony which can take place
at a register office or approved venue and may not contain any religious content. To be
valid, all marriages which take place in the UK must be monogamus and carried out in
accordance with the requirements of the marriage Act 1949. The domicile of the
parties is not relevant. As held by the privy Council in AIR 1950 Eugene Berthinume
V Dame Anne Marrie1, if a marriage is good by the law of the country where it is
effected, it is good all over the world no matter, whether the proceedings of the
ceremony which constituted the marriage according to the Law of place would not
constitute marriage in the country of domicile of one or the other spouses. According
to the petitioner, her marriage in England was under civil law of England.
Both the Petitioner and her husband lived in India from 1969 till her return to
England in 1974.The law applicable to the said marriage is the personal law. The
personal law of an individual in India is governed or determined by his membership in
a community and not by his domicile. According to the muslim law,the husband is
authorized to give talaq to his wife without intervention of the court.
As laid down in Abdur Rahim undre Vs Padma Abdur Rahim, (AIR 1982
Bom, 341,2(1982)DMC204)2 the law applicable to the above marriage is the personal
1 AIR 1950 Eugene Berthinume V Dame Anne Marrie
2 Abdur Rahim undre Vs Padma Abdur Rahim, (AIR 1982 Bom, 341,2 (1982)
DMC204)
14
law viz. Muslim law. According to the Muslim law the husband is authorised to give
talaq to his wife without intervention of court.
Divorce under Muslim law is largely nonjudicial and may be divided under two
heads 1. unilateral divorce by husband and (b) divorce at the instance of the wife but
with the consent of the husband. The former is called Talaq. It may be oral or in
writing and no particular form is reqired. The intention to divorce must be clear and
unequivocal and the presence of wife is not required and the muslim husband need not
mention any reason or cause. Under Muslim law,talaq is good even if pronounced at
whim or in tantrum Fuzlunbi v K.Khader AIR 1989 Sc 19303.
In Shamim Ara v State of Uttar Pradesh and Anr,AIR 2002 SC 3551 4,it is
held that the talak to be effective, has to be pronounced.The talak pronounced in the
absence of wife takes effect even though not communicated to her.
In Astaq Qureshi Vs Ayshe Qureshi5, (1971) it is held that once the Indian
court decides that it has jurisdiction to entertain the petition for divorce, then it will
apply the personal law of the parties, and talaq pronounced in respect of marriage
celebrated in England will be recognised, if under the law of domicile of parties this
mode of divorce was valid
5 Astaq Qureshi Vs Ayshe Qureshi
the year 1966 in England was performed according to the British marriage Act. On
their return to India they were governed by the law of domicile, which is the personal
law of the husband viz. mohammedan Law and therefore it is open to the husband to
give divorce to his wife according to the provisions of Mohammedan Law. In personal
or family matters in India, the Muslims are governed by Mohammedan Law, Raj
Mohammed v. Shaheeda AIR1976 Kant 20010
In Khambatta v.Khambatta AIR 1935 bum 5 1934,36 Bom LR 1021, 190511
the court was called upon to decide whether the marriage was governed by the law
applicable at the time of the marriage or was governed by the law applicable after
convertion or the law of the matrimonial domicile The court observed that if change of
domicile can effect a change in status then is no reason why the change in status then,
there is no reason why the change of religion should not do the same thing. It is held
that as it would he law after conversion that would govern the marriage the first
marriage was validly dissolved. Relying upon the decision of the court in khambatta V
khambatta that so far as lex domicilli is concerned, the present marriage will be
governed by the personal law of the husband viz Mohammedan law.
As per section 2 of the Recognition of Divorces and legal separations Act 1971 ,
Foreign divorce will be recognized by English court whether it is obtained in judicial
proceedings or other proceedings ie, the nonjudicial divorces will be recognized in
England if they were valid under the law of the country where they were granted, they
would also be recognized in England if they were recognized under the personal law
of parties. Thus English court would recognize foreign decree of divorce, if it is
recognised as valid by the court of the domicile of the parties, Travers v.Holly12
In R.V.Hammersmith13 the English court said that the nonjudicial divorce in
muslim form of talaq could not effectively dissolve an English marriage. English law
then veered around to the position that nonjudicial divorce in any form would be
recognised in England if parties were domiciled in a country which recognised such
mode of dissolution of marriage.
1 2 Travers v.Holly
1 3 R.V.Hammersmith
16
Here the first marriage of the pettioner is valid as per the English law and
subsequent divorce by her husband, as per the muslim law is also valid and recognised
by the English court of law.
2. whether the second marriage of the petitioner, as per the Hindu law, is
valid.
In India marriage is a personal affair and governed by the law of each
personal community, following its particular religion, like Hinduism , Islam, christian
or Jainism. There is no territorial law governing personal matters of all these religious
communities. The personal law of an individual in India is governed or determined by
his membership of a community and not by his domicile. These personal laws are not
lexloci ie. Laws confined to particular territory or domicile but they have an extra
territorial jurisdiction or application. In order to apply the provisions of the Hindu
Marriage Act 1955 both, parties must be domiciled in India and it is not enough that
one of them was a domicile of the country.
The Indian courts would accord reecognition to such marriage even if one of
the parties or both the parties have no capacity to enter into the marriage under their
antenuptial domicile or the law of marriage is essential a personal law- personal law, in
the sense that the governing law of marriage is not the Indian law or the state law but
the law of the community to which parties belong. The most remarkable feature of
17
Indian Law is that the special Marriage between any two persons also gives birth to a
separate personal law. If any two persons perform their marriage under the Act, then
the validity of the marriage is determined under the Act even when both the parties are
domiciled elsewhere.
As to the marriage solemnized abroad, the act lays down that they will come
under the perview of the general rules of private International law which lays down
that a marriage to be formally valid must comply with the local law- locus regit actum.
A marriage which does not comply with the formalities of the local laws not valid. If
the marriage is formally valid in accordance with the law of the place where took
place then, the marriage would be valid every where. It the law of the place where the
marriage iis solemnized lays down that a marriage which complies with the
requirements of the personal law of the parties is valid, then a marriage performed
accordingly will be valid
It may be noted that under the Hindu Marriage Act, 1955 'any two Hindus'
whether domiciled in India or not, whether Indian nationals or foreigners, can perform
their marriage in customery modes. Arti Sharma Vs. Gopal Dutt Sharma, 201015.
Here the petitioner was divorced by her Muslim husband whereafter she
converted to Christanity. At the time of the second marraige with a hindu man, she
became a Hindu and began praticing Hinduism. They were married in a Hindu
ceremony according to Hindu rites. Sangeeta v. Preston Gomes MAT.APP. 201016.
14 starkowski V AG
1 9 Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619)
2 0 Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341)
19
AIR 1928 Lah 70622, it was held that no forms of ceremonies are required for a
valid marriage. In the instant case both petitioners’ mother and respondent’s
father married according to Hindu customs and henec it’s a valid one.
U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF
2008, (Arising out of SLP (C) No. 11785 OF 200723) Supreme Court of India
ruling Property inherited by a Hindu from his father, father’s father or father’s
fathers’ father, is ancestral property and their childrens are entitled to them.
Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 2024, it
was held that the share which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male issue. They take an interest in
it by birth, whether they are in existence at the time of partition or are born
subsequently. Here both the petitioner and her deceased husband cohabitated for
a long period and a daughter were born to them. As the marriage was performed
according to Hindu rites there were no doubt that the marriage is a valid one and
the petitioners are legal wife and daughter of the deceased. in Bhaurao V.
State of Maharashtra AIR 1965 SC 156425 observed:- "Apart from these
considerations, there is nothing in the Hindu Law, as applicable to marriages till
the enactment of the Hindu Marriage Act, 1955, which made a second marriage
of a male Hindu, during the lifetime of his previous wife, void." if a second
marriage did take place, children born of such marriage, provided it was not
otherwise invalid, were not illegitimate and in the matter of inheritance, they had
2 4 Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20
equal rights. As the petitioner being the legitimate daughter she and her mother
is entitled to get her father’s both self-acquired property and ancestral property.
Conclusion
Hence from the above arguments, evidences adduced it has came into
conclusion that the marriage solmenized between the petitioner and her ex
husband Is valid and the divorce is valid. The second marriage of the petitioner
according to Hindu Marriage rites is valid and the peitioner being the legitimate
daughter of the deceased husband of second petitioner is entitled to both
ancestral and self acquired property.
PRAYER
declare that the petitioner being the legitimate daughter, entitled to both self
acquired and ancestral property of respondent’s father.
3.Whether the petitioner’s entitled to get both ancestral property and self
acquired property?
SUMMARY OF ARGUMENTS
Judges, who dealt with talaq in Muslim law as good even if pronounced at whim
or in tantrum and argued against the diehard view of Batchelor, J., ILR (1906) 30
Bombay 537 (539), that this view is good in law, though bad in theology." In
A.S.Parveen Akthar vs The Union Of India14 on 27 December, 2002 (Madras
High court decision) it was held that triple talaq is invalid. It was held that
English courts have jurisdiction to entertain suits from parties domiciled in
England at the time of marriage.
2. whether the second marriage of the petitioner is valid.
The plaintiff had not come to the court with clean hands. According to
her, the marriage in England was under civil law of England.The marriage was
not dissolved in accordance with law and therefore, the plaintiff is not entitled
to any declaration.
It cannot be ignored that under the Mohammedan Law, the defendant wife
who was a christian,before her marriage, has no remedy to seek a matrimonial
relief for a foreign marriage which took place in the year 1966, as per the
provisions of the British Marriage Act, She has no remedy available under the
Mohammedan Law. So for as she concerned, the Law available is Foreign
14 A.S.Parveen Akthar vs The Union Of India
26
Marriage Act.Once it is held that the marriage between her and her first
husband,solemnized in England,in1966 is governed by the Foreign Marriage
Act, then obviously it cannot stand dissolved by unilateral talak. Abdur Rahim
Undre v. Padma Abdur Rahim, AIR 1982 Bom10.
As already held in the present case the marriage took place in England on
1966. Therefore it was a foreign marriage within the the hearing of Foreign
marriage Act 1965 and governed by chapter IV of the foreign Marriage Act
1969. The lex domicile so far as secular marriage is concerned will be special
Marriage Act 1954 and not MohammedanLaw. It cannot be disputed that the
marriage which was solemnized as per the provision of the British Act in 1966,
in England, was secular in form and content and was a monogamous
marriage.On the date of the first marriage,the defendant was a hindu. No Indian
Law, till the Special Marriage Act 1974 was enacted, can apply to
Mohammedan marriage. It appears to be a used settled priciple of law that, in
the absence of anything to the contrary, the rights under the marriage are to be
governed by the law of domicili. In the present case; both the plaintiff and her
husband came to India in 1969. In relying upon the decision of the court in
Khambutta V Khambutta11, that so far as domicili is concerned, the present
marriage will be governed, by the personal law of the husband, viz.
Mohammedan law. However, this is not the correct position today. Once it is
held that the marriage which took place in England in 1966 was secular in the
form and content and also monogamous and such a secular law is also
available in India, in the form of special marriage Act, then even the lex
domicili incase of such secular marriage will be special marriage Act and not
the personal law of husband.
The crucial question to be examined here in is whether the petitioner
could successfully prove her conversion from Christianity to Hinduism so as to
lawfully marry the respondent according to the Hindu rites and ceremonies.
There is little or no assistance for proving the factum of conversion. In the case
of Skinner v Skinner 1897 ILR 25 Cal 537 12, the Privy Council, while
referring to the possibility that a change of religion on the part of both the
spouses might have the effect of altering rights incidental to the marriage was
careful to add the qualification that such change must be made honestly and
without any intent to commit a fraud upon the law.
10 Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982 Bom
11 Khambutta V Khambutta,
12 Skinner v Skinner 1897 ILR 25 Cal 537,
27
Here in the instant case from the facts it has came to understand that there
was no actual Hindu Marriage Act and hence the marriage is not valid. In
Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR
1994 SC 13514, no contract of marriage can come into existence without the
performance of the necessary ceremonies, it is obivious that a marriage without
requisite ceremonies is null and void. In Dr. A.N.Mukherji v State, AIR 1969
All 48915, it has been held that proof of due performance of necessary
ceremonies of marriage is essential for the prosecution for bigamy. Here there
was no evidence regarding the conuct of marriage between Emily and Jamini
Rai. In Rajathi v Seilliah, (1966) 2 MLJ 4016, it was held that no one can
innovate new ceremonies and a marriage performed with the innovated
ceremonies rites is invalid. In Shahji v Gopinath AIR 1995 Mad 161 17, mere
registration is no proof of marriage.
The divorce is not valid. The marriage between Emily and Jamini Rai is
not valid one and hence the contention that her marriage, as per the Hindu
Marriage Act 1955, is valid cannot stand as she is illegitimate wife of Jamini
Rai.
1 4 Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR 1994 SC 135
19 Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20]
2 0 Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099]
30
2 3 Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors on 20 December,
2002
31
Conclusion
Hence from the above arguments and evidences adduced, the petitioner is not the
legitimate daughter of the respondents’ father and hence entitled to get a share in
the self acquired property only.
PRAYER