BEFORE THE HON'BLE HIGH

COURT

Civil Appeal No. _________/2025

IN THE MATTER OF :

AAROHI
….APPELLANT
Vs
XYZ
….RESPONDENT

APPEAL UNDER SECTION 09 OF THE HINDU

MARRIAGE ACT,1955

WRITTEN SUBMISSIONS ON BEHALF OF APPELLANT

 COUNSEL ON BEHALF OF APPELLANT

TABLE OF CONTENTS

1. List of Abbreviations.
2. Index of Authorities .
3. Statement of Jurisdiction.
4. Statement of Facts.
5. Statement of Issues.
6. Summary of Arguments.
7. Argument Advanced.
8. Prayer.
 LIST OF ABBREVIATIONS

ABBREVIATIONS KEYWORDS

Hon’ble Honourable

Sec. Section

AIR All India Report

Vs Versus

HC High Court

US Under Section

SCC Supreme Court

Cases
SC Supreme Court

No. Number

CPC Civil Procedure

Code
 INDEX OF AUTHORITIES

Cases:
 Savitri Pandey v. Prem Chandra Pandey,
(2002) 2 SCC 73
 Swaraj Garg v. K.M. Garg, AIR 1978 Del 296
 Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC
778
 Naveen Kohli v. Neelu Kohli, (2006) 4 SCC
558
 Neerja Realtors Pvt. Ltd. V. Janglu, (2018) 2
SCC 649
 Bhanu Kumar Jain v. Archana Kumar, (2005) 1
SCC 787
Books:
 Mulla’s Hindu Law ( Satyajeet A. Desai )
 Paras Diwan Modern Hindu Law
 Introduction to Family Law

Other Sources:
https://indiankanoon.org/
https://www.sci.gov.in/
https://www.indiacode.nic.in/
https://blog.ipleaders.in/
https://en.wikipedia.org/wiki/Law
 STATEMENT OF JURISDICTION

The Hon’ble High Court has jurisdiction to entertain and

decide the present matrimonial appeal under Section
28 of The Hindu Marriage Act, 1955, read with Section
19 of The Family Courts Act, 1984.
 STATEMENT OF FACTS

 The Appellant Aarohi, and the Respondent

solemnized their marriage on 01.04.2019
according to Hindu rites and customs. The couple
also entered into a marital agreement on the same
day.

 The Appellant resided in her matrimonial home for

five days post-marriage. During this brief period,
the marriage was not consummated, and she was
mistreated and neglected by the Respondent. They
never shared a bed, and the Appellant returned to
her parental home due to the hostile environment.

 Following societal customs and on advice from her

parents, the Appellant returned to her matrimonial
home. However, even after living there for nearly
five years, the situation did not improve. She
alleges the Respondent frequently returned home
intoxicated, subjected her to physical violence, and
emotionally and mentally abused her.

 The Appellant later discovered that the

Respondent was a man of weak character, involved
in extramarital relationships, addicted to alcohol,
and a regular consumer of intoxicants.
 In light of continued cruelty and abuse, the
Appellant finally left her matrimonial home in May
2024 and has since been residing with her parents.

 The Respondent denied all allegations and claimed

he provided bona fide treatment to the appellant.
He alleged that she was unhappy living in the
village and repeatedly insisted on moving to the
city, which was economically unfeasible for him
due to unemployment. He stated that she left
voluntarily, taking her personal belongings and
stridhan , without valid justification.

 The Respondent filed a petition under Section 9 of

the Hindu Marriage Act, 1955, seeking restitution
of conjugal rights, which was granted in his favour.
However, the Appellant did not contest the decree
nor did she return to the matrimonial home
thereafter.

 The Appellant now approached this Hon’ble Court

under Section 13 of the Hindu Marriage Act, 1955,
seeking dissolution of the marriage on grounds of
cruelty, desertion, and irretrievable breakdown of
marriage.
 STATEMENT OF ISSUES

1. Whether the appeal is maintainable ?

2. Whether the decree for Restitution of Conjugal

Rights is liable to be set aside ?

SUMMARY OF ARGUMENTS
  ISSUE NO.1 : Whether the appeal is
maintainable ?
It is humbly submitted before the Hon’ble Court that,
under Section 28 of The Hindu Marriage Act,1955, an
appeal lies from any decree passed under the Act,
including one dismissing a divorce petition or granting
restitution of conjugal rights. Therefore the present
appeal is maintainable.

 ISSUE NO. 2: Whether the decree of Restitution of

Conjugal Rights is liable to be set aside ?
It is humbly submitted before the Hon’ble Court that,
the wife suffered continuous physical, mental and
emotional cruelty, non-consummation of marriage, and
husband’s immoral behaviour, making the restitution
of conjugal rights impossible. Restitution without
dignity, love and respect would amount to forced
cohabitation and hence the decree deserves to be set
aside.
 ARGUMENT ADVANCED

ISSUE NO.1 : Whether the Appeal is

maintainable or not ?
It is respectfully submitted that the present
appeal is legally maintainable and deserves
consideration on merits. Also appeal is a matter of
right which is provided through the legislature
under specific statutes. Appeal provides the
aggrieved party in any decree to approach the
higher court, although this right comes with a bar
of limitation period but that too can be taken into
consideration if a genuine and just cause could be
shown for the delay in that limitation. The
limitation period is a technical aspect and thus
should not be aside without considering the just
cause.

1. It is most respectfully submitted that the present

appeal is maintainable under Section 28 of the
Hindu Marriage Act, 1955, which provides for
appeals from any decree or order made by the
Family Court under the Act.

2. Furthermore, Section 19 of the Family Courts

Act, 1984 grants appellate jurisdiction to the
Hon’ble High Court against decisions passed by
Family Courts.

CASE LAW :
  In Savitri Pandey v. Prem Chandra
Pandey, (2002) 2 SCC 73, the Hon’ble
Supreme Court held that all decrees under the
Hindu Marriage Act are appealable under
Section 28, provided they are not
interlocutory in nature.

3. The impugned decree, being one for Restitution

of Conjugal Rights under Section 9, qualifies
as a “decree” under the Hindu Marriage Act and
hence is appealable.

4. The Appellant, having suffered emotional,

physical, and mental cruelty and being unable to
comply with the decree, is entitled to seek
redressal before this Hon’ble Court through the
appellate route.

 Appeal Against Ex Parte Decree is Permissible

in Law
Under Sec.96(2) of The Civil Procedure Code,
1908, an appeal lies even against an Ex- Parte
Decree, and the appellate court is empowered
to assess whether the decree was legally and
factually sustainable.

 Cause of action and jurisdiction properly

established
The parties were married and last resided
together within the territorial jurisdiction of the
Family Court. The cause of action for the
petition as well as the appeal arose therein.
 Thus the appeal is rightly placed before this
Hon’ble Court.

5. Therefore, the present appeal is not only

maintainable in law but also justified on facts and
circumstances warranting judicial intervention.

ISSUE NO. 2 : Whether the decree for

Restitution of Conjugal Rights is liable to be
set aside ?
It is humbly submitted that the ex parte decree is
liable to be set aside on grounds of cruelty,
desertion and procedural unfairness.
1. It is humbly submitted that the decree passed in
favour of the Respondent under Section 9 is liable
to be set aside as the essential conditions for
restitution – love, trust, cohabitation and mutual
respect – were absent in the marital relationship.

CASE LAW:
In Swaraj Garg v. K.M. Garg, AIR 1978 Del 296, it
was held, that cruelty, desertion, and failure to
discharge matrimonial obligations are valid grounds to
deny restitution of conjugal rights.

2. The Appellant was subjected to physical, mental,

and emotional cruelty, and the marriage was never
consummated. The Respondent displayed immoral
behaviour, including addiction and infidelity,
making marital life unbearable for the Appellant.
3. The Hon’ble Courts have held that where
cohabitation would amount to forced or abusive
living conditions, restitution cannot be enforced.

CASE LAW:
In Vinita Saxena v. Pankaj Pandit, (2006) 3
SCC 778, the SC emphasized that compelling a
spouse to live in a hostile and abusive environment
amounts to mental cruelty and entitles the
aggrieved party to relief.

CASE LAW:
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC
558, the Hon’ble Supreme Court recognized
irretrievable breakdown of marriage as a strong
circumstance warranting judicial intervention, even
if not formally codified as a ground for divorce.

 Restitution Cannot Be Granted When

Marital Life is Intolerable
The respondent-husband was guilty of mental
and physical cruelty, non-consummation of
marriage, alcoholism, and adultery. In such
circumstances, a decree compelling the wife to
return to the matrimonial home is oppressive
and unjust.

 Constructive Desertion by the Husband

Though the wife left the matrimonial home, it
was due to intolerable conduct of the
 respondent. The husband failed in his marital
obligations, and his behaviour forced the wife
to leave.

Case Law:
Savitri Pandey v. Prem Chandra Pandey
[(2002) 2 SCC 73] – If one spouse’s conduct
makes cohabitation impossible, the other
spouse’s departure does not amount to
desertion.
Case Law:
In Gaya Prasad v. Bhagwati [AIR 1966 MP
212] – Restitution should not be granted
where the petitioner has failed in basic
matrimonial duties.

Case Law:
Arjun Singh v. Mohindra Kumar [AIR 1964
SC 993] – A decree passed without giving a
real opportunity of being heard violates
natural justice.

4. It is most respectfully submitted that the ex parte

decree passed in favour of the Respondent under
Section 9 of the Hindu Marriage Act, 1955, is
liable to be set aside as it was obtained without
notice, and the Appellant was not given a fair
opportunity to be heard.

5. The Appellant submits that she was never duly

informed or served with summons in the Section 9
 proceedings, and she came to know of the decree
only after it was passed. Hence, there was no wilful
default or negligence on her part. The conduct of
the Respondent, as recorded in the statement of
facts, clearly shows cruelty, desertion, and immoral
behaviour—all of which were not brought before
the Family Court due to non-participation of the
Appellant in those proceedings.

CASE LAW:
In Neerja Realtors Pvt. Ltd. V. Janglu, (2018) 2
SCC 649, it was observed that natural justice is
violated when a decree is passed behind the back
of one party, especially when the matter affects
fundamental rights like dignity and personal liberty.

6. The present appeal is maintainable under Section

96(2) of the Civil Procedure Code, 1908, which
provides:

"An appeal may lie from an original decree passed

ex parte."

CASE LAW:
In Bhanu Kumar Jain v. Archana Kumar,
(2005) 1 SCC 787, the Hon’ble Supreme Court
clarified that Section 96(2) CPC offers an
independent right to appeal against ex parte
decrees, and the remedy is not dependent upon
filing an application under Order IX Rule 13 CPC.
 7. It is also submitted that enforcing a decree that
results in forced cohabitation after prolonged
separation, especially when the marriage has
irretrievably broken down, will be oppressive and
against public policy.

Therefore, in the interest of justice, equity, and fair

hearing, it is humbly prayed that this ex parte decree
be set aside, and the appeal be allowed in the interest
of justice and equity and the Appellant be allowed to
contest the matter afresh or seek appropriate relief by
way of divorce.

PRAYER

In view of forgoing it is most respectfully prayed that

this Hon’ble Court may be pleased for:

1. Allow the present appeal

2. Set aside the decree of restitution of conjugal
rights passed by the Family Court.
3. Allow the Appellant to contest the proceedings on
merits or to pursue divorce under Section 13 of the
Hindu Marriage Act, 1955.
 Pass such other and
further orders as this Hon’ble Court may deem fit and
proper in the interest of justice.