Memorial for Appellant

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TEAM CODE- 13

PRESENTED BEFORE THE HON’BLE GAUHATI HIGH COURT

INTRA MOOT COURT NEF LAW COLLEGE

MR. ANIL (APPELLANT) VS. MRS. RASHMI (RESPONDANT)

MEMORIAL FOR APPELLANT

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TABLE OF CONTENTS

SERIAL NUMBER 1. 2. 3. 4. 5. 6. 7.

TOPIC Index of Authorities Statement of Jurisdiction Statement of Facts Issues Raised Summary of Arguments Written Arguments Prayer

INDEX OF AUTHORITIES REFERRED BOOKS: 1) Commentary on Hindu Law by R.K. Agarwala.

PAGE NUMBER 3 4 4 5 6-7 8-15 16

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2) The Code of Civil Procedure by C.K Takwani. 3) Modern Hindu Law by Paras Diwan. 4) The Constitutional law Of India by J.N. Pandey. REFFERED CASES: 1) Vikram Vir Vohra vs Shalini Bhalla AIR 2010 SC 1675 2) Rajesh K Gupta vs Ram Agarwala AIR 2005 SC 2426 3) G.P Srivastava vs R.K Raizaada Special Leave Petition(civil) 17942-43 of 1999 4) Harpal Kaur Santosh Singh vs Mohinder Kaur 1983 HLR 28(P&H) 5) Indira Gangele vs S.K Gangele AIR 1993 MP 59 6) Tapan Chakraborty vs Anjali Chakraborty AIR 1993 Cal. 10

STATEMENTS OF JURISDICTION The Appellant humbly submits this memorandum to the honourable High Court under Section 19(1) of Family Courts Act 1984 which reads as under;

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“ Save as provided in subsection (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure 1973 or in any other law an appeal shall lie.” STATEMENT OF FACTS Mr Anil married Miss Rashmi on 31-01-2004 according to Hindu Laws. They have a legitimate son named Rahul who is 11 years now. He was caught twice in stealing his classmate’s personal belongings. The appellant was a businessman in Germany and he kept visiting his wife and child frequently, He also provided maintenance to both the child and his wife. The appellant filed an original petition for the custody of child and a petition of restitution of conjugal rights. The respondent was having illegal intimacy with another person. The appellant is also financially strong than the respondent so he wanted the custody of Rahul. The appellant filed an appeal in High Court of a Gauhati against the order of trial court , claiming the custody of child because the respondent deposited in the Trial Court that she would not remarry but she did immediately after the judgement of the Trial Court.

ISSUES RAISED The parties have placed before this Honourable Court, the following Questions for its consideration:

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1. Whether the Appellant Mr. Anil has the locus standi to file an appeal in the High court? 2. Will remarriage of the respondent amounts to termination of guardianship? 3. Whether the decision of the subordinate court of dismissing the petition for restitution of conjugal right was justified? 4. Whether the custody of the child to his mother will be detrimental to his physical and mental welfare? And whether the financial condition of the mother shall be taken into consideration while giving away the custody of the child? 5. Whether the act of the husband (accusation of unchastity) actually amounted to cruelty towards his wife?

Summary of Arguments It is Humbly submitted that, 1. Whether the Appellant Mr. Anil has the locus standi to file an appeal in the High court?

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Yes, the appellant Mr Anil has the locus-standi to file an appeal in the High Court. Section 96 of the Civil Procedure Code, 1908 states that two conditions are required to Appeal in the High Court, of which the appellant fulfils both the conditions. Firstly, the subject matter of the appeal must be a decree and secondly, the party appealing must have been adversely affected by such determination. 2. Will remarriage of the respondents amounts to termination of guardianship ? This case comes under the ambit of Section 39 of the Guardianship And Wards Act 1890 which states that, “The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court.” Because in our case she deposited in front of the trial court she will not remarry ,but after the judgement of the Honourable Family Court she remarried. Section 13 of the Hindu Minority and Guardianship Act 1956 states that , After she remarried the welfare of the minor will be at the losing end and hence the respondents guardianship should be terminated. 3. Whether the decision of the subordinate court of dismissing the petition for restitution of conjugal right was justified? No, the decision of the subordinate court of dismissing the petition for restitution of conjugal rights was not justified. The learned judges in G.P Srivastava vs R.k Raizaada1 held that the defendant cannot be penalised for previous negligence which had been overlooked and subsequently condoned. In our case also the decision of the ex parte decree is itself is questionable as the grounds of 1 Special Leave petition 17942-43 of 1999

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cruelty and harassment on which the decree was granted cannot be proved by the respondent in the eyes of the law. 4. Whether the custody of the child to his mother will be detrimental to his physical and mental welfare ? And whether the financial condition of the mother shall be taken into consideration while giving away the custody of the child? (A) Yes, if the custody of the child is given to his mother will amount to detrimental to his physical and mental welfare. This case comes under the ambit of, Section 17 of the Guardians and Wards Act 1890, Section 13 of the Hindu Minority and Guardianship Act 1956 and Section 26 of the Hindu Marriage Act 1955. (B) Section 26 of Hindu Marriage Act speaks that orders in respect of children whether temporary or permanent are never final. 5. Whether the act of the husband (accusation of unchastity ) actually amounted to cruelty towards his wife ? The act of the husband did not actually amount to cruelty. Section 13(1)(ia) of Hindu Marriage Act 1955 held that the act of cruelty would depend upon the court to consider the gravity of the cruelty.

Written Arguments It is humbly submitted that, 1. Whether the Appellant Mr. Anil has the locus standi to file an appeal in the High court?

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Yes the appellant Mr, Anil has Locus Standi to file an appeal in the High Court. It is humbly submitted that the case comes under the ambit of Section 96 of the Code of Civil Procedure states 2 condition which must be satisfied to file an appeal in the High Court. Conditions are:(a) The subject matter of the appeal must be a decree that is a conclusive determination of the right of the parties with regard to all or any of the matters in controversy in the suit and (b) The party appealing must have been adversely affected by such determination.

In the instant case there was a decree which was passed by the family court against the appellant. The husband has not got the custody of the child till date upon which he is the aggrieved party. The appellant had always performed the duties and responsibilities of a father. He kept on visiting his son whenever he could and also provided maintenance for both the wife and the son. Many people have short comings , here the husband being a successful businessman is bound to make frequent business trips outside India but, that does not imply that they are not deserving of the solace and custody of their children . Hence the appellant has filed the appeal in the High Court so that he would get the custody of the child. Section 26 of Hindu Marriage Act 1955 states that, “In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the

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Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.” In Vikram Vir Vohra vs Shalini Bhalla2, It is also been said that orders in respect of children whether temporary or permanent are never final. Custody and visitation right orders are interlocutory in nature. They can be moulded and changed according to the needs of the child. So in the instant case what does fact reveal? The facts reveals that the welfare of the minor child is the only interest in the remaining life of the appellant for which he is prepared to take any pain and task in life. The appellant being the natural guardian of the child, the boy who is 11 years old will find it difficult to adjust with his stepfather. And in future if the respondent The respondent in her previous statement before the Principal Judge of Udalguri Family Court had stated that she would not remarry in her life and would look after the child, which facts has been specifically mentioned in the judgement of the trial court. But quite contrary to the statement the respondent immediately after the judgement of the District Judge, remarried.

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Will remarriage of the respondent amounts to termination of guardianship?

In this instant case, the contention of appellant was that contrary to the deposition was made by respondent before the trial court that she would not remarry, but immediately after the judgement of the petition filed under the Guardian And Wards Act 1890, she remarried, the respondent has fail to perform the duties of her trust.

2 2010 SC 1675

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Section 39 of the Guardian And Wards Act 1890 states the provisions for removal of guardian, “The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :- For abuse of his trust for continued failure to perform the duties of his trust, for incapacity to perform the duties of his trust, for ill-treatment, or neglect to take proper care, of his ward, for contumacious disregard of any provision of this Act or of any order of the Court, for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward for having an interest adverse to the faithful performance of his duties.” In our case the respondent has failed to perform the duties other trust. The respondent said in the trial court that she would not remarry but she did. Sec 13 of the Hindu Minority and Guardianship Act , 1956 states that, 1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. In Rajesh K. Gupta vs Ram Agarwala3it was held that, in an application seeking custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal & whether the custody of the child requires that the 3 AIR 2005 SC 24265

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present custody should be changed and the custody should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child the paramount consideration is welfare of the child and not the legal right of either of the parties. Again in our case, the respondent remarried after obtaining the decree of divorce with another man. The minor’s welfare will be at risk because it would be difficult for him to cope up with his step- father. Though during the interview of the child the, he preferred to stay with his mother. But this was before she had remarried. Once the mother remarried, there will be lot of hue and cry for the minor. In the near future if there would be a legitimate child of the minor’s mother and his step father then the welfare of the minor might lose its existence in the mind of his mother and his step-father. Therefore due to the remarriage of the respondent the welfare of the minor will be at the losing end and hence the respondent’s guardianship should be terminated. 3. Whether the decision of the subordinate court of dismissing the petition for restitution of conjugal right was justified? No, the decision of the subordinate court of dismissing the petition for restitution of conjugal right was not justified. The ex parte decree which was given in the favour of the respondent by the Principal Judge of the Udalguri Family Court was unjustifiable. According to the general rule of law when ex parte decree is passed by the court, then the petition for restitution of conjugal right gets dismissed automatically. Hence in the instant case there was a petition for restitution of conjugal right filed under Section 9 of Hindu Marriage act 1955 by the husband, where the Principle Judge of Udalguri Family Court dismissed the petition for default.

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But, the family court passed the ex- parte decree for divorce on the ground of harassment and cruelty which are totally false allegations on behalf of respondent which cannot be proved in the court of law. In G. P. Srivastava vs R. K. Raizada 4 it was held that the sufficient cause for non-appearance refers to the date on which the ex parte decree was passed due to his absence and this cannot be stretched to rely upon their circumstances anterior to in time. The defendant cannot be penalised for previous negligence which had been over looked and subsequently condoned. In the absence of any malafide intention and remedy sought not barred by limitation, the courts should favour the defendant unless there are sufficient grounds to the contrary. The court opined that the provision for setting aside the decree should be given a broad construction and no hard and fast guidelines can be prescribed. 4. Whether the custody of the child to his mother will be detrimental to his physical and mental welfare? And whether the financial condition of the mother shall be taken into consideration while giving away the custody of the child? (A) Yes, if the custody of the child to his mother it will be detrimental to his physical and mental welfare. As Section 17 of the Guardianship and Wards Act 1890 states that, in considering what will be for the welfare of the minor, the character and capacity of the proposed guardian will be observed. As section 13 of Hindu Minority and Guardianship Act 1956 states that, (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 4 Special Leave Petition (Civil) 17942- 43 of 1999

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(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. As Section 26 of the Hindu Marriage Act 1955 states that, “In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.” In this instant case Rahul is a minor to decide by his own whether he should stay with his father or mother because at such a tender age he does not know what is right for him and what is not. It is stated in the facts that while he was in the custody of his mother he was twice caught for stealing his classmate’s personal belongings. The main allegation of the Appellant was that the respondent was having illegal intimacy with another person and the fact that the mother was living an unchaste life. In Harpal Kaur Santosh Singh vs Mohinder Kaur5 it was held that, where the lower court Awarded custody of 16 years old daughter to her mother as against mother’s sister, the High

5 1983 HLR 28 (P&H)

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Court reversed the decision on the ground of child’s wishes and the fact that the mother was leading an unchaste life. (B) Section 26 of Hindu Marriage Act, 1956 speaks that orders in respect of children whether temporary or permanent are never final. Custody and visitation right orders are interlocutory in nature. They can be moulded or changed according to the needs of the child. In this instant case the appellant is financially better than the respondent. In the facts it is mentioned that the appellant has provided that the appellant has provided her maintenance which she took because she was financially weak to maintain herself and also to meet the needs of the child. It is also mentioned that Rahul caught twice in stealing his classmate’s personal belongings as the mother of the child is financially too weak to provide the basic necessities to her child, so Rahul indulged in stealing personal belongings of his classmates. Yes, the financial condition of the mother should be taken into consideration while giving away the custody of child so that the child’s welfare is not hampered. 5. Whether the act of the husband (accusation of unchastity ) actually amounted to cruelty towards his wife ? In the instant case, there was a false charge of accusation of unchastity upon the appellant. The Appellant did not commit any form of cruelty on the respondent. If there was cruelty committed by the appellant then what type of cruelty, whether physical or mental. The time period that is from when to when the cruelty was committed by the appellant has not been mentioned. If there was cruelty then why did the respondent wait for 10 long years to file the case. The Learned Judges in Indira Gangele v/s S.K Gangele6 it was held that, there was only some misunderstanding between the parties. And only merely saying that the parties. And 6 AIR 1993 MP 59

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only merely stating that the parties are unhappy is not enough to accused either party on the ground of cruelty. In our case there were only some misunderstanding between Appellant and Respondent and hence the ground of cruelty and harassment were mere false allegations against the Appellate. Section 13(1)(i-a) states that the act of cruelty would depend upon the court to consider the gravity of the cruelty to make it a ground for divorce, there the word “treated” signifies a continuous course of cruel behaviour by the respondents to the husband. In Tapan Chakraborty vs Anjali Chakraborty7 the Learned Judges observed that, Mere suspicion without any overt act or outward suspicion cannot amount to cruelty. There must be some test of objectivity in the concept of cruelty. Only a certain state of mind of one person, without more cannot have the adverse effect on the mind of other spouse so much so that it would amount to cruelty. Marriage cannot be so frail and fragile that is should be wrecked because of some quarrels between the couple or on account of some frailty on the part of this or that spouse. Therefore mere alleging the respondent having illegal intimacy with another person to file a petition does not amount to cruelty in any form.

PRAYER

7 AIR 1993 CAL. 10

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Wherefore in the lights of the facts stated, issues raised, arguments advanced and authorities cited, The counsels for the appellant humbly forever pray before this honourable court kindly, Grant the custody of the child in favour of the appellant, so that the welfare, Interest and progress of the minor is at paramount level.