Restitution of Conjugal rights

Tamanna and Abhiram both resident of Jalgoan decided to marry each other in 2011
according to Hindu Ceremonies. The couple got their Marriage registered as per the
provisions of The Special Marriage Act, 1954 and in effect a marriage certificate was issued
by the authorities. They had two children’s out of this wedlock born in the year 2012 and
2016 respectively.

Tamanna was a disciple of Peer Baba and had blind faith on baba. Even after marriage she
continued to visit Baba . Abhiram was not happy with these practices.

In January 2014, after taking voluntary retirement from Indian Navy Abhiram went to
France for higher studies. Tamanna refused to visit foreign nation for one year on the advice
of Baba. Abhiram left for France alone. Then in April 2015 , Abhiram called his wife to join
him in France along with their first child. In January 2016, their second child was born in
France. In Feb-2016, he came back to jalgoan along with his wife and two kids.

In March 2016 , Abhiram told his family that he has to clear some institutional formalities at
France and he will return after six months. After moving to France in March 2016, Abhiram
got opportunity to work with leading university and stayed in France.After Sept- 2016 he
severed all his contacts with Tamanna. In Jan -2017 Tamanna wrote a letter to Abhiram
expressing her willingness to join Abhiram in France.

She also explained that Baba has advised her and Abhiram to live together under one roof
otherwise Baba will Curse them. Abhiram in reply wrote to Tamanna that she should not
come to France as he was interested in getting their marrage dissolved. In Dec-2017 he got
the citizenship of France.

In April -2018, he filed petition for divorce in Trial court of France on the ground that
marriage has irretrievably broken down. Tamanna could not contest these proceedings. She
having no means to go to France . Parents of Tamanna visited her mother in law and asked
them to talk to their son. Tamanna tried to make Abhiram understand about Hindu culture but
he refused to continue the marriage . Mean while on July 13 2018, trial Court of France
granted a divorce decree in favour of Abhiram. Further the court order that the husdand
would pay to his wife and children an amount of Rs:35000 per month for their maintenance.

After the decree of Trial Court of France, Abhiram and Evelyn entered in a civil solidarity
pact in Aug 03 2018. Abhiram didn’t disclose the facts of ex-party decree of divorce and his
entering into a relationship with Evelyn to his parents and Tamanna. Abhiram continued to
pay the maintenance amout to Tamanna through crediting the amount in her bank account in
months of Jul;y, August and September 2018.

After paying maintenance for three months Abhiram failed to pay maintenance to wife and
children. Mean while Tamanna came to know about ex-parte decree of divorce. Tamanna
approached the legal Aid cell, Jalgoan. Cell helped Tamanna through a letter to the trial court
of France that she be provided legal aid. Thereafter, proceedings were initiated and warrant of
arrest was issued against Abhiram. She further said that the ex-party decree of divorce
obtained by the husband was not binding on her and was illegal and that she continued to be
the wife of Abhiram. She further asserted that as per the provision of the special marriage act-
1954 the ground of divorce (on the basis of adultery cruelty and desertion ) under section 27
of the act are available to the wife under the given the set of circumstances. Infacts, she is the
actual victim, who was being further victimized by the order of the France Trial court.

In December-2018, Tamanna filed a petition under section 22 of The Special Marriage act,
1954, for Restitution of conjugal Rights in the District Court, Jalgoan. Abhiram appeared in
court and filed an application for dismissal of petition. He referred to the decree of divorce
granted by the Trial Court of France and said that despite notice, Tamanna did not contest the
same and by not raising any objection she is deemed to have accepted the jurisdiction of the
foreign court. Further, by accepting the maintenance, Tamanna again in effect accepted the
judgment of foreign court and is thus stopped from filing the present petition (under section
11 read with section 151 of CPC,1908). The case is pending for adjudication in District
Court, Jalgoan.

Legal Issues:

1)Whether the marriage of Tamanna and Abhiram is valid under the provisions of The
Special Marriage Act,1954?

2) Whether non contest by the wife of divorce petition filed by the husband in a Foreign court
imply that she had conceded to the jurisdiction of the foreign court ?

3)Whether the principle of Res-judicata under sec.11 of CPC ,1908 is applicable to the
proceedings being initiated by the District Court, Jalgoan?

4)Whether the relationship of Abhiram and Evelyn is legal?

5)Whether Tamanna is entitled to restitution of Conjugal Rights under the special marriage
act,1954?

Participants can add more issues.

 FACTS OF THE CASE

 Abhiram: A Hindu Boy

 Tamanna: [ Question not clear;
i. a disciple of Peer Baba and had blind faith on baba can be interpreted she is
Muslim.
ii. Tamanna tried to make Abhiram understand about Hindu culture but he
refused to continue the marriage can be interpreted as she is Hindu ]
 Tamanna and Abhiram both are Resident of Jalgoan [Place in Maharashtra].
 Tamanna was a disciple of Peer Baba. Even after marriage she continued to visit
Baba. Abhiram was NOT HAPPY with these practices.
 2011:
 They decided to marry each other according to Hindu Ceremonies.
 The couple got their Marriage registered as per the provisions of The
Special Marriage Act, 1954.
 A marriage certificate was issued by the authorities.
 2012: 1st Child was Born.
 2014, Jan:
 Abhiram took voluntary retirement from Indian Navy
 Abhiram went to France for higher studies.
 Tamanna refused to visit foreign nation for one year on the advice of
Baba.
 2015, Apr: Abhiram called his wife to join him in France along with their 1st child.
 2016, Jan: second child was born in France.
 2016, Feb: They came back to jalgoan. (Abhiram, Tamanna and two kids).
 2016, March:
 Abhiram told his family that he has to clear some institutional
formalities at France and he will return after six months.
 Abhiram got opportunity to work with leading university and stayed in
France.
 2016, Sept:
 Abhiram severed (end suddenly and completely) all his contacts with
Tamanna.
 2017, Jan:
 Tamanna wrote a letter to Abhiram expressing her willingness to join
Abhiram in France.
 Pere Baba has advised her and Abhiram to live together under one roof
otherwise Baba will Curse them.
 Abhiram in reply wrote to Tamanna that she should not come to France
as he was interested in getting their marrage dissolved.
 2017, Dec: Abhiram got the citizenship of France.
 2018, April:
 Abhiram filed petition for divorce in Trial court of France.
  Ground: That marriage has irretrievably (i.e. even after all the efforts
marriage cannot be restored and also not blaming the other party)
broken down.
 2018, April- 12th July
 Tamanna could not contest these proceedings.
 Tamanna having no means to go to France.
 Parents of Tamanna visited her mother in law and asked them to talk to
their son.
 Tamanna tried to make Abhiram understand about Hindu culture but
he refused to continue the marriage.
th
 2018, 13 July:
 Trial Court of France granted a divorce decree in favour of Abhiram.
 Court order that the husdand would pay to his wife and children an
amount of Rs:35000 per month for their maintenance.
rd
 2018, 03 August
 Abhiram and Evelyn entered in a civil solidarity pact.
 Civil Solidarity Pact [A Civil Pact, often referred to as a Civil
Partnership or a Civil Solidarity Pact, is a legally recognised
relationship between two individuals who wish to formalise their union
in the eyes of the law without getting married.]
 Abhiram didn’t disclose the facts of ex-party decree of divorce and his
entering into a relationship with Evelyn to his parents and Tamanna.
 2018, July, Aug and Sept
 Abhiram paid the maintenance amount to Tamanna through crediting
the amount in her bank account (For 3 Months only).
 2018,
 After three months Abhiram failed to pay maintenance to wife and
children.
 Tamanna came to know about ex-parte decree of divorce.
 Tamanna approached the legal Aid cell, Jalgoan.
 Cell helped Tamanna through a letter to the trial court of France that
she be provided legal aid.
 proceedings were initiated and warrant of arrest was issued against
Abhiram.
 She said that the ex-party decree of divorce obtained by the husband
was not binding on her and was illegal and that she continued to be the
wife of Abhiram.
 Tamanna said, as per the provision of the special marriage act-1954 the
ground of divorce (on the basis of adultery cruelty and desertion )
under section 27 of the act are available to the wife under the given the
set of circumstances.
 She asserted that she is the actual victim, who was being further
victimized by the order of the France Trial court.
 2018, Dec
 Tamanna filed a petition U/s. 22 of The Special Marriage act, 1954, for
Restitution of Conjugal Rights in the District Court, Jalgoan.
 Abhiram
i. Appeared in court and filed an application for dismissal of petition.
ii. Referred to the decree of divorce granted by the Trial Court of
France.
iii. Said that despite notice, Tamanna did not contest the same and by
not raising any objection she is deemed to have accepted the
jurisdiction of the foreign court.
iv. Tamanna accepted the maintenance, implies that she accepted the
judgment of foreign court.
v. Thus Tamanna is stopped from filing the present petition (U/s. 11
read with section 151 of CPC, 1908).
 The case is pending for adjudication in District Court, Jalgoan.
 As Tamanna Counsel

Legal Issues:

1. Whether the marriage of Tamanna and Abhiram is valid under the provisions of The
Special Marriage Act,1954?

Argument:
 Abhiram: A Hindu Boy
 Tamanna:

i. If Muslim: Marriage as per Special Marriage Act, 1954 is Vaild. [Note 1]

Marriage as per Hindu Marriage Act, 1955 is Illegal. [Note 2] [HMA

applicable only when Both are Hindu]

ii. If Hindu: Marriage as per Hindu Marriage Act, 1955 is legal. [Note 2]

 Registration of Marriage [Note 3]: Abhiram and Tamanna decided to marry each
other according to Hindu Ceremonies but the couple got their Marriage registered as
per the provisions of The Special Marriage Act, 1954. A marriage certificate was
issued by the authorities. It is legal EVIDENCE of their marriage.

 Case Law 1: Prabir Chandra Chatterjee vs Kaveri Guha Chatterjee on 5

February, 1987 (Cal.)
[once such entry is made, the marriage, howsoever celebrated earlier, shall
thenceforth "be deemed to be a marriage solemnised" under the Special Marriage Act]

Hence, Marriage of Tamanna and Abhiram is VALID as per SMA, 1954.

2. Whether non-contest by the wife of divorce petition filed by the husband in a Foreign court
imply that she had conceded to the jurisdiction of the foreign court ?

Arguments [Note 4- 10]

 In April, 2018 Abhiram filed petition for divorce in Trial court of France [NOTE 10:
France is non reciprocating territories of India- NOTE6: Jurisdiction]. [Sec13 of CPC
grounds when foreign judgment not conclusive]. Implies, it has NO JURISDICTION.

Case 2: Y. Narasimha Rao and Ors v. Y. Venkata Lakshmi and Anr. (1991) [Without
Jurisdiction- Judgement not Valid]

 The Ground for Divorce is that the marriage has irretrievably [NOTE 5] broken down
filed in France court. [NOTE4: Grounds for divorce]. Irretrievably is not the Grounds
as specified Grounds under SMA, 1954. Hence Decree granted by France Court will
be Illegal.
  Also Tamanna could not contest these proceedings as she has no means to go to
France. This is against Natural Justice [NOTE6]
 Divorce Decree was ex-party decree which itself is INVALID.

3. Whether the principle of Res-judicata under sec.11 of CPC ,1908 is applicable to the
proceedings being initiated by the District Court, Jalgoan?

- Since the Judgement of France is Not valid as per Issue 2. There is no Res-Judicata in
this case and Tamanna can filed a petition under provisions of The Special Marriage act,
1954,at Jalgoan.

Case Law 7: Anubha v Vikas Aggarwal (2002) [Res Judicata]

4. Whether the relationship of Abhiram and Evelyn is legal ?

- Abhiram was marriage and obtained Divorce by exparte Decree and after the Divorce he
entered Civil Solidarity PACT [Note13 ]with Evelyn.

- The Relation between Abhiram and Evelyn is Not legal as the Issues 2 is proved against
Abhiram. That is at the time of entering PAC agreement with Evelyn [ i. Condition as to no
person shall have spouse at the time of entering Pact] is violated. Since Abhiram Marriage is
not nullified as per SMA,1954 implies he has spouse, so the condition is violated.

- As per SMA, marring Evelyn leads to bigamy and abhiram will be punished u/s. 496 of IPC
and it will also be the grounds for divorce available to Tamanna. Bigamy is not allowed
under SMA . [Sec 496 of IPC: Whoever, dishonestly or with a fraudulent intention, goes
through the ceremony of being married, knowing that he is not thereby lawfully married,
Penality Imprisonment up to 7 Years + Fine ].

Case Law 8: Harmeeta Singh v. Rajat Taneja 2003 [Criminal offence] [until this Decree
is recognized in India he would have committed the criminal offence of bigamy]

Case Law 9: Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr. [court faced
the question that whether the first marriage was dissolved in light of the decree passed by the USA
court. The Supreme Court answered this issue in negative and refused to recognize the divorce
decree granted by the USA court.]

Hence, the Relationship is NOT LEGAL.

5. Whether Tamanna is entitled to restitution of Conjugal Rights under the special marriage
act,1954 ?

Yes, Withdrawal from society for 2 years i.e March 2016 to April 2018 [2yrs and 1 month]
[Note 14]
As Abhiram Counsel

Legal Issues:

1. Whether the marriage of Tamanna and Abhiram is valid under the provisions of The
Special Marriage Act,1954?

Argument:
 Abhiram: A Hindu Boy
 Tamanna:

i. If Muslim: Marriage as per Special Marriage Act, 1954 is Vaild. [Note 1]

Marriage as per Hindu Marriage Act, 1955 is Illegal. [Note 2] [HMA

applicable only when Both are Hindu]

 Registration of Marriage [Note 3]: Abhiram and Tamanna decided to marry each
other according to Hindu Ceremonies but the couple got their Marriage registered as
per the provisions of The Special Marriage Act, 1954. A marriage certificate was
issued by the authorities. It is legal EVIDENCE of their marriage.

 Case Law 1: Prabir Chandra Chatterjee vs Kaveri Guha Chatterjee on 5

February, 1987 (Cal.)
[once such entry is made, the marriage, howsoever celebrated earlier, shall
thenceforth "be deemed to be a marriage solemnised" under the Special Marriage Act]

Hence, Marriage of Tamanna and Abhiram is VALID as per SMA, 1954.

2. Whether non-contest by the wife of divorce petition filed by the husband in a Foreign court
imply that she had conceded to the jurisdiction of the foreign court ?

 In April, 2018, Abhiram filed petition for divorce in Trial court of France.
Participation Of the Parties In Foreign Court Proceedings where other party Did Not
Attend Nor Actively Participated [Note 11] [ Most imp point in the case]- [ non-
applicant did not risk a favourable ruling. In such a case, the Indian courts may hear a
challenge to the foreign court’s decree]
Non-contest by the wife doesn’t make Judgement Null and Void. And if
aggrieved then she can file an appeal in Indian Court.
 Abhiram filed case in France and it is Competent Court.
Case 3: Satya versus Teja, 1975 AIR 105 [ Sec13 CPC- Compitent Court mean that
only that court will be a court of competent jurisdiction which the Act or the law
under which the parties are married recognizes]

 Abhiram filed a Divorce petition on the Ground that: Marriage has irretrievably
Irretrievable Breakdown.
 Case law 4 : Shilpa Sailesh vs. Varun Sreenivasan [Iretrievable Breakdown of
Marriage can be grounds- Power of SC U/A 142]
 Tamanna is follower of peer baba, and use to perform act asked by peer baba. This is
a phycological abuse.
Case Law 5: Naveen Kohli vs. Neelu Kohli (2006) SC [psychological, physical,
and financial abuse to the point where their marriage was irreparably broken and
held Irretrievable Breakdown of Marriage as a valid ground for granting a divorce]
 From March 2016 till April 2018, Tamanna and Abhiram are Living Seprately, which
is case of Marriage BREAK-DOWN.
Case law 6: K. Srinivas Rao vs D.A. Deepa (2013) SC

3. Whether the principle of Res-judicata under sec.11 of CPC ,1908 is applicable to the
proceedings being initiated by the District Court, Jalgoan?

[ Depend on Issue 2 Validity ]

4. Whether the relationship of Abhiram and Evelyn is legal ? [ Depend on Issue 2 Validity ]

5. Whether Tamanna is entitled to restitution of Conjugal Rights under the special marriage
act,1954 ?

[Depend on Issue 2 Validity ]