MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS

1. Index of Authorities

i. List of Abbreviation

ii. Table of Cases

iii. Statutes

iv. Books and Articles

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of Issues

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5. Summary of Arguments

6. Arguments Advanced

Prayer

MEMORIAL FOR APPELLANT

TABLE OF CASES

1. Sewa Ram v. State of U.P ( Cr.l 1695 of 2007) and Sachin Jana v. State of West
Bengal. ( Cr.l 176 of 2008)
2. Lala Ram v. State of Rajasthan ( Cr.l 1116 of 2006 )
3. Barinder Kumar Ghosh v. King Emp ( 1925) 27 BOMLR 148
4. State of U.P vs Iftikar Khan, 1973 AIR 863, 1973 SCR (3) 328
5. Girija Shankar vs State of UP, Cr.l 1034 of 1997
6. Ramaswamy Ayyangar & Ors. vs State Of Tamil Nadu, 1976 AIR 2027, 1976
SCR 580
7. Bhagat Ram V/S State of Punjab, AIR 1954 SC 621
8. State of U.P. V/s Ashok Kumar Shrivastav, 1992 AIR 840, 1992 SCR (1) 37

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STATEMENT OF FACTS

1. Mr. Ramesh and Miss. Ranjana got marry on 16th March, 2012 as per the Hindu
Rituals. Thereafter they were cohabitin in the same home where Ramesh was
resided.
The Mother of Ramesh was an Orthodox female and had high belief in mythology
and hindu god. Ramesh’s mother beliefs that to attain Moksha, a man needs a son,
So because of that belief she used to say to Ranjana that to conceive and give the
privilege to them of being grandparents to a grandson.

2. On the date of 25th September, 2014 Miss. Ranjana delivered a baby girl. Because
of that there were difference arose between them and then Ramesh’ mother
continuously passed insulting remarks upon Ranjana. Just because of that Ramesh
mother ask him to marry a another girl so that she could get a baby boy. Ranjana
even asked Ramesh to leave the home and shift to the new home so that they could
live peacefully and then there will be no issues will arise between them.

3. On 15th December, 2015 Ranjana decided to leave the home just because her
husband was not ready to leave the home and Ranjana was frustrated by Ramesh
mother regular comments.

4. Ramesh never ever visited his daughter just because Ranjana was not available at
home, so on the date of 2nd august, 2016 he finally filed for divorce u/s 13 under
Hindu Marriage Act alleging desertion by his wife. The Summons was issued to
Ranjana at the address shown but the same was returned y Miss Usha marked as
“refused to accept”. Then the family court considered it as good service proceeded
with the matter.

5. The petition was heard ex parte mere on the basis of adduced Ramesh then the
family court granted divorce to husband on 13th June, 2017. The copy of order was
sent by Ramesh to Ranjana to the address provided.

6. On the date of 14th December 2017 Ramesh married to Miss Priyanka. Priyanka
conceived Ramesh’ child and was due for delivery on 5th September 2018.
Meanwhile Mrs Ranjana filed an application on 3rd April 2018 before the high court,
for condonation of delay for filing appeal against the decree of family court granting
ex parte decree to Ramesh stating that she was unaware of the proceedings as the
summons were served on the address on whch she was not residing. She also stated
that her parents moved to new home and accordingly she also went to the new house.

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Furthermore she never had the intention to desert Ramesh. She just decided to leave
the matrimonial house but never desired to never the matrimonial bond.

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ISSUES RAISED

1. Whether the decree shall be set aside hampering the status quo of
second marriage.

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ARGUMENT ADVANCED

1. Whether the decree shall be set aside hampering the status quo of
second marriage.

Respondent after passing of the divorce decree by trial court in his favor was entitled and
was justified by law to remarriage. He got married and now living his life peacefully with
her second wife who is expected to have a baby in upcoming days.
Setting aside the decree would now create an irreversible chaotic situation and would be
against the justice and rights of the respondent and his new wife.

In the case of Surendra Kumar Vs Kriyan Devi the Hon’ble Rajasthan High Court held
that when there is a valid remarriage and when rights of the second wife intervene, the
petition to set aside the ex-parte decree cannot be allowed.

Similar question arose in the case of Harjeet Singh Vs Guddi whereas Rajasthan High
Court held that when second valid marriage is contracted, it is in the interest of justice to
dismiss the application for setting aside the ex-parte decree for divorce.

In the case of Champa Prasad Jain Vs Smt. Malti Prabha it was held that when the
second marriage is a valid marriage it is in the interest of justice to dismiss the application
setting aside the divorce decree.

It would be unjustified if the court sets aside the decree. Second marriage being valid
gives matrimonial rights to the parties and the orders which tends to violate such rights
could be said inconsistent and unlawful.
More over the bitter relationships in past should never be entertained at the cost of sweet
matrimonial relationships in present.

Sec 15 of the Hindu Marriage Act, 1955, which deals with right to remarry reads as
under:
“when a marriage has been dissolved by 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
been dismissed, it shall be lawful to either to marriage to remarry again.

It is appropriate to highlight the amendment made in Sec15 of the act during the year
1976 and the purpose behind this amendment. Before such amendment there was a
proviso to the section, which laid down that it shall not be lawful for the respective parties
to marry again unless at the date of such marriage at least one year has elapsed from the
date of decree in the court of first instance.

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The reduction of the waiting period for remarriage by the aforesaid amendment itself
suggest that the intention of the legislation is to settle the right of husband and wife after
divorce permanently, at the shortest period of time. In fact, the fate of couple after divorce
should not be kept hanging for a long and indefinite period. Such an uncertainty does not
help either of the parties in the marriage in any way. Therefore, the intention of the
legislature which encompasses public policy and social interest should also be taken into
account.

PRAYER

It is humbly prayed before this Hon’ble Court in the light of issues raised arguments advanced
and authority cited.

The appeal to set aside the divorce decree should be dismissed and the judgment passed by
family court should be upheld.

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