Beruflich Dokumente
Kultur Dokumente
TC 09
Before
AT PATNA
Versus
Roll No. : A – 06
TABLE OF CONTENTS
2
Memorandum for the appellant
INDEX OF ABBREVIATIONS
Sec…………………………………………………..Section
No……………………………………………………Number
Hon’ble………………………………………………Honourable
INDEX OF AUTHORITIES
Books Referred :
Statutes :
Cases Referred :
3
Memorandum for the appellant
STATEMENT OF JURISDICTION
THE HONOURABLE HIGH COURT OF JUDICATURE AT PATNA HAS THE JURISDICTION IN THIS
MATTER UNDER S ECTION 28 OF THE HINDU MARRIAGE ACT, 1955 WHICH READS AS
FOLLOWS :-
Section 28 :-
(1) All decrees made by 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 the
exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceedings under this Act, under Section 25
or Section 26 shall, subject to the provisions of sub-section (3), be appealable if
they are not interim orders 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.
(3) There shall be no appeal under this section on subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days
from the date of the decree or order.
4
Memorandum for the appellant
STATEMENT OF FACTS
1. Mr.Ranvir, the appellant, and Smt. Sushmit, the respondent, are both
Hindus though belonging to different castes, met and fell in love and
irrespective of being of different castes they decided to marry which resulted
in the marriage ceremony which was solemnized with customary rites and
ceremony on 27/11/2005 at the parents’ house of the respondent at
Mohalla-87, Gangasagar allalpati, P.S. Laheriasarai.
2. After the marriage was solemnized the parties started to live together as
husband and wife, and the marriage was consummated by cohabitation.
Thereafter they decided to get the marriage registered and applied for
registration before the Marriage Officer, Darbhanga.
3. After the process was adopted, the parties were directed to appear, they did
appear along with three witnesses on 8/02/2006, and both the applicant
and the respondent accepted the said marriage before the Marriage Officer
in the presence of the witnesses and upon being satisfied the Marriage
Officer issued Certificate of Marriage dated 8/02/2006.
4. The parties continued to lead conjugal life till July 2008 and in the 1st week
of August, 2008 the respondent went to her parents’ house, However, when
the appellant went to his Sasural on 29/08/2008 to meet his wife, the
father-in-law and some other relatives present there became very angry by
stating that the caste men including the relations were opposing the inter-
caste marriage.
5. Under the threat to life, the appellant was directed to write on a stamp
paper as per their dictation, which my client did and thereafter the appellant
5
Memorandum for the appellant
was driven out from his sasural without allowing him to meet his wife. The
respondent assured the applicant that she is still ready to live with him and
forbade him from taking any action against her.
6. However, all efforts of the applicant to bring the respondent back to the
matrimonial home failed, upon which the application under Section 9 of the
Hindu Marriage Act, 1955 was filed.
7. The respondent appeared upon notice and filed the written statement by
way of objection taking the plea that the case has been filed with vexatious,
malicious and dishonest intentions for maligning and defaming the prestige
of the respondent and high reputation of her in-laws and the parents and for
extorting money from them as the respondent had or has no concern with
the applicant. It was further asserted that the respondent is the daughter of
a reputed Doctor and her mother is also Principal and Director of Jesus and
Mary School, Darbhanga and further that the respondent is married with
Dr.Rajnish, son of Mrs. Veena Singh and Ramashankar Singh, the Joint
Commissioner, Commercial Taxes on 24th November, 2008 and is leading
happy conjugal life with her husband. It was also asserted that the
statement regarding her marriage made in the application was totally false
and at the relevant time she was living with her parents and a regular
student of final year MBBS and never married or even knew the applicant. It
was also asserted that from a reading of paragraphs 1, 3 and 4 of the
Matrimonial case it is apparent that no ceremonies like Saptapadi and
Kanyadan were performed in the alleged marriage dated 27.11.2005 and
thus such marriage cannot be said to have been solemnized in accordance
with the provisions of Section 7 of the Hindu marriage Act, 1955. It was
further asserted that the applicant sent forged affidavit along with a C.D.
and photographs at the address of her Mausi which she came to know on
6.8.2008 and thereafter her father appeared in court, swore affidavit on
14.8.2008 and filed the same before the Marriage Officer, Darbhanga. It was
asserted that a fraudulent marriage certificate had been obtained in the
name of the respondent by forging her signature by impersonating the
6
Memorandum for the appellant
9. The respondent did not examine any other witness except herself nor
produce any documentary evidence.
10. The Matrimonial case under Section 9 of the Hindu Marriage Act for
restitution of conjugal right filed by the appellant was dismissed accordingly
by the Principal Judge, Family Court, Darbhanga.
11. Thus, the appeal is directed against the judgment and order dated
5.9.2011 passed by the Principal Judge, Family Court, Darbhanga in
Matrimonial Case No. 154 of 2008 by which he has dismissed the
Matrimonial case under Section 9 of the Hindu Marriage Act for restitution
7
Memorandum for the appellant
II. DISPUTE
On 29th August 2008 the appellant went to meet the defendant his wife, the
father-in-law and some other relatives present there became furious by stating
that the caste men including the relations were opposing the inter-caste marriage
and under threat to life he was directed to write on a stamp paper as per their
dictation, which he did and thereafter the appellant was driven out from his
sasural without being allowed to meet his wife. The appellant did not take any
legal action on account of such conduct due to the assurance given by the
respondent that she was still ready to live with him and forbade him from taking
any action. Constant attempts were made by the appellant to bring the respondent
back to matrimonial home but all of them failed and as a result this appal/
petition was filed.
QUESTIONS PRESENTED
ISSUE NO. 1 – WHETHER CERTIFICATE OF MARRIAGE IS VALID IN THE EYES OF LAW OR NOT?
ISSUE NO. 2 – WHETHER THE ALLEGED MARRIAGE IS VALID IN THE EYES OF LAW OR NOT?
8
Memorandum for the appellant
ARGUMENTS ADVANCED
The counsel on behalf of the Appellant before the Hon’ble Court humbly submits it
as per the facts of the case that the respondent along with the appellant married
at the parents’ house of the respondent on 27th November 2005 and started to
live together as husband and wife. Thereafter they decided to get their marriage
registered and applied for registration of marriage before the Marriage Officer,
Darbhanga. After the process, the parties were directed to appear along with three
witnesses before the Marriage Officer, Darbhanga on 8th February 2006, and they
did appear before the Marriage Officer and also accepted the said marriage in
presence of the witnesses on the same date. Upon being satisfied the Marriage
Officer as per Provisions provided in CAPTER III of Special Marriage Act issued
certificate of marriage dated 8/02/2006. Also as per the facts of the case, the
respondent has failed to produce any evidence as to prove that her signatures on
the marriage certificate are forged.
LAW OR NOT?
The counsel on behalf of the Appellant before the Hon’ble Court humbly submits
that the alleged marriage is valid as it is registered as per the provisions of
Chapter III under Special Marriage Act, 1954 as shown in the marriage certificate
provided as evidence in the present appeal. There is no doubt that in order that
there may be a valid marriage according to Hindu law, certain religious rites and
ceremonies have to be performed. To prove that a ceremony has been performed
counsel has also filed several pictures of the marriage ceremony in which the
appellant and the respondent can be seen together at the parents’ house of the
respondent. Also in the decision given by Supreme Court in the case of Sumitra
9
Memorandum for the appellant
Devi v. Bhikan Choudhary : AIR 1985 SC 765 The court said clearly in the
decision that
“ there can be a marriage acceptable in law according to customs which do not insist
on performance of such rites as referred to above and marriages of this type give
rise to legal relationship which law accepts “
The counsel on behalf of the Appellant before the Hon’ble Court humbly submits it
as per the facts of the case that in the 1st week of August, 2008 the respondent
went to her parents’ house, and when the appellant went to his Sasural on 29th
August 2008 to meet his wife, the father-in-law and some other relatives present
there became very angry by stating that the caste men including the relations were
opposing the inter-caste marriage. Under the threat to life, the appellant was
directed to write on a stamp paper as per their dictation, which my client did and
thereafter the appellant was driven out from his sasural without allowing him to
meet his wife. The respondent assured the applicant that she is still ready to live
with him and forbade him from taking any action against her. The appellant had
put all efforts to bring the respondent back to the matrimonial home but all were
failed.
10
Memorandum for the appellant
Therefore, relying on the said case the respondent has miserably failed to provide
a reasonable excuse as to why she has left the society of the appellant.
11
Memorandum for the appellant
PRAYER
In the light of the facts stated, issues raised, arguments advanced and authorities
cited the counsel for the Appellant humbly prays before the Hon’ble High Court of
Judicature, Patna to adjudge and declare :-
The Court may pass any order as it may deem fit in the interest of Justice, Equity
and Good Conscience.
Place : Patna
Date : 17/02/2018
12