DUMMY RESPONDENT

I N T H E H O N ’ B L E
S U P R E M E C O U R T O F I N D I A

SPECIAL LEAVE PETITION

UNDER ART. 136 (1) OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

PRATISHA ______________Appellant

v.

HUKAM SINGH ______________Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Most Respectfully Submitted to the

Hon’ble Supreme Court of India

MOOT COURT
RAFFLES UNIVERSITY, NEEMRANA
 MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

SERIAL NUMBER TOPIC PAGE NUMBER

1 TABLE CONTENTS II
2 LIST OF ABBREVIATIONS III
3 INDEX AUTHORITIES IV-VI
4 STATEMENT OF JURISDICTION VII
5 STATEMENT OF FACTS VIII-IX
6 ISSUES RAISED X
7 SUMMARY OF ARGUMENTS XI-XII
8 WRITTEN ARGUMENTS 1-11
9 PRAYER XIII

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LIST OF ABBREVIATIONS

AIR All India Reporter

Art. / art Article
Bom Bombay
Edn Edition
H.P. Himachal Pradesh
Ibid Ibidem
IPC Indian Penal Code
LR Law Reporter
Ltd. Limited
s/ss. Section/Sections
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
SLP Special Leave Petition
U.P. Uttar Pradesh
U.S. United States
v Versus

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INDEX OF AUTHORITIES
TABLE OF CASES

S.NO CITATION FOOTNOTE NO.

1 Pritam Singh v State, AIR 1950 SC 169. 2
2 Engineering Mazdoor Sabha v Hind Cycles Ltd., 3
AIR 1963 SC 874
3 Jaswant Sugar Mills Ltd. v Lakshmi Chand, AIR 4
1963 SC 677.
4 Jamshed Hormusji Wadia v Board of Trustees, Port 5
of Mumbai AIR 2004 SC 1815.
5 Mathai Alias Joby v George, (2010) 4 SCC 358. 6
6 Tirupati Balaji Developers Pvt. Ltd. v State of Bihar, 7
AIR 2004 SC 2351.
7 Narpat Singh v Jaipur Development Authority, 8
(2002) 4 SCC 666.
8 Basudev Hazra v Matiar Rahaman Mandal, AIR 9
1971 SC 722. 9
9 Smt. Bibhabati Devi v Ramendra Narayan Roy 11
(1947) 49 BOMLR 246.
10 Nizam v State of Rajasthan, Criminal Appeal No.413 12
of 2007 (Supreme Court of India, 04/09/2015).
11 Shivnarayan Laxminarayan Joshi v State of 13
Maharashtra, AIR 1980 SC 439.
12 Bhagwan Singh v State of Rajasthan, (1976) 1 SCC 14
15.
13 Ganga Kumar Srivastava v State of Bihar, (2005) 6 15
SCC 211.
14 Sham Sunder v Puran, (1990) 4 SCC 731 16
15 Deo Narain Mandal v State of U.P. (2004) 7 SCC 17
257.
16 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 18
SCC 840.
17 Thrity Hoshie Dolikuka v. Hoshiam Shavaksha 19
Dolikuka, (1982) 2 SCC 544.
18 Surinder Kaur Sandhu (Smt.) v. Harbax Singh 20
Sandhu, (1984) 3 SCC 698.
19 Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, 21
(1987) 1 SCC 42
20 Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), 22
(1993) 2 SCC 6.
21 Mousami Moitra Ganguli v.. Jayant Ganguli, (2008) 23
7 SCC 673.
22 Gaurav Nagpal v. Sumedha Nagpal, 2008(4) RCR 24
(Civil) 928.
23 Bandhua Mukti Morcha v. Union of India & Ors., 25

IV
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(1997) 10 SCC 54.

24 Arora v. Sukriti Arora, (2017)3 SCC 726. 26
25 Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413. 27
26 Shaik Moidin v. Kunhadevi, AIR 1929 Madras 33. 28
27 Sura Reddy v. Chenna Reddy, AIR 1950 Madras 29
306.
28 Munnodiyil Peravakutty v. Kuniyedath Chalil 30
Velayudhan, AIR 1992 Ker 290.
29 Athar Hussain v. Syed Siraj Ahmed and others, 31
(2010) 2 SCC 654.
30 Rajesh K. Gupta v. Ram Agarwal, AIR 2005 SC 32
24265.
31 Harpal Kaur Santosh Singh v. Mohinder Kaur, 1983 33
HLR 28 (P&H).

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BOOKS REFERRED

1. M.P. Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2014).
2. Commentary on Hindu Law by R.K. Agarwala.

3. The Code of Civil Procedure by C.K Takwani.

4. Modern Hindu Law by Paras Diwan.

5. The Constitutional law Of India by J.N. Pandey.

ACADEMIC PORTALS REFERRED

1. www.jstor.org last accessed on April 24, 2019.

2. www.lexisnexis.com last accessed on April 24, 2019.
3. www.manupatra.com last accessed on April 24, 2019.
4. www.scconline.co.in last accessed on April 24, 2019.
5. www.supremecourtofinida.nic.in last accessed on April 24, 2019
6. www.westlawindia.com last accessed on April 24, 2019.

STATUES REFERRED

1. The Hindu Minority and Guardianship Act (1956)

2. Guardians and Wards Act, 1890
3. Hindu Marriage Act,1955
4. The Constitution of India

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STATEMENT OF JURISDICTION
THE HON’BLE SUPREME COURT OF INDIA EXERCISES DISCRETIONARY JURISDICTION TO HEAR

AND ADJUDICATE OVER THE MATTER UNDER ART.136 (1) OF THE CONSTITUTION OF INDIA. THE

PROVISION UNDER WHICH THE APPELLANT HAS APPROACHED THE HON’BLE COURT AND THE

RESPONDENT IS FILLING RESPONSE TO IT:

ART. 136 (1) OF THE CONSTITUTION OF INDIA

“ART. 136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT
(1) NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE SUPREME COURT MAY, IN ITS

DISCRETION, GRANT SPECIAL LEAVE TO APPEAL FROM ANY JUDGMENT, DECREE,

DETERMINATION, SENTENCE OR ORDER IN ANY CAUSE OF MATTER PASSED OR MADE BY ANY

COURT OR TRIBUNAL IN THE TERRITORY OF INDIA.”

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STATEMENT OF FACTS

1. The Marriage between the Appellant and the Respondent was solemnized on 31-01-2000 as
per the Hindu Religious Rites and Customs. Out of the said wedlock a son, namely Rahul was
born and he is 12 years old now. At the time of marriage the Respondent was Business Man
at U.S.A. After marriage the Appellant and the Respondent lived together for 3 months and
thereafter lived separately because of the misunderstanding between them. Since the
harassment and cruelty of the Respondent crossed the extreme extent, the appellant was
compelled to file a petition for divorce on the ground of cruelty.

2. The Respondent filled an original petition under the Guardians and Wards Act for the custody
of the 11 years old minor child, and a petition under section 9 of Hindu Marriage Act for
Restitution of Conjugal Right. The main allegation of the Respondent was that, the Appellant
was having illegal intimacy with another person. The second contention was that, if the child
is in the company of the Appellant, it would affect the education of the child. The Respondent
also contended that he is financially better than the Appellant and hence the custody of the
child be given to him. The Appellant defended the matter and filed a written statement
denying all the allegations.

3. In the meantime, the Subordinate Judge of Dehradun passed an ex-parte decree of divorce in
favour of the Appellant and the petition for restitution of conjugal rights filed by the
Respondent was dismissed for default. After considering the oral evidence adduced by the
parties and examining the documentary evidence and also interviewing the child the trial
court came to the conclusion keeping in view that welfare of the child the custody should be
given to the mother and dismissed the original petition of the father filed under the Guardians
and Wards Act.

4. Against the order of the Trial Court, the Respondent filed an appeal before the High Court of
Uttarakhand. The contention of the Respondent was that, contrary to the deposition made by
the Appellant before the trial court that, she would not remarry, immediately after the
judgment of the petition filed under the Guardians and Wards Act, she remarried. It is,
therefore, contended that the continued custody of the child with the Appellant would be
detrimental to the interest, progress and welfare of the child.
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5. The High Court, without giving an opportunity to express the willingness of the child,
allowed the appeal on the ground of remarriage of the Appellant, i.e., Mother of the child.
The High Court also held that the Respondent – Father is a Business man in U.S.A and the
father is more apt and suitable to protect the interest of the minor child and also in imparting
education to the required standard of the child.

Aggrieved against the order passed by the High Court, the Appellant has preferred the Civil
Appeal to this moot court.

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STATEMENT OF ISSUES

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

II. WHETHER THE CUSTODY OF CHILD GIVEN TO FATHER AMOUNTS TO “WELFARE OF

CHILD”?.

III. WHETHER THE CHILD WAS MATURE, INTELLIGENT ENOUGH TO UNDERSTAND THE

FACTS? WHETHER THE CHILD WAS GIVEN OPPORTUNITY TO HEARD OR INTERVIEWED BY

THE HIGH COURT TO SHOW HIS WILLINGNESS?

IV. WHETHER THE APPELLANT WAS FINANCIALLY SOUND TO TAKE CUSTODY OF THE CHILD?
WHETHER THE FATHER IS NATURAL GUARDIAN AND HIS CLAIM IS SUPERIOR FOR THE

CUSTODY OF CHILD?
V. WHETHER THE REMARRIAGE OF THE APPELLANT WOULD AMOUNT TO TERMINATION OF

GUARDIANSHIP?

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SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

In response to this issue, the counsel humbly submits before the Hon’ble Court that the
Special Leave Petition is not maintainable in the instant case as High court was justified in
the transferring custody of the child to respondent father in welfare of child. There is been no
miscarriage of justice have occurred to appellant in fact it was respondent caused miscarriage
of justice by the District court decision and High Court did right in reversing it.

II. WHETHER THE CUSTODY OF CHILD GIVEN TO FATHER AMOUNTS TO “WELFARE OF CHILD”?
In response to this issue it is submitted that the High Court did right in transferring the
custody of child to father as he is economically and financially good, he will provide best
upbringing which he needs.

III. WHETHER THE CHILD WAS MATURE, INTELLIGENT ENOUGH TO UNDERSTAND THE

FACTS? WHETHER THE CHILD WAS GIVEN OPPORTUNITY TO HEARD OR INTERVIEWED BY

THE HIGH COURT TO SHOW HIS WILLINGNESS?

It is submitted that in the instant case that child is only 12 years old and is not capable of
forming any intelligent, prudent or well reasoned preference of a parent and to understand the
circumstances which would be good for him. In addition as at the time case was adjudicated
he was not so mature so High Court did right by not interviewing the child.

IV. WHETHER THE APPELLANT WAS FINANCIALLY SOUND TO TAKE CUSTODY OF THE CHILD?
WHETHER THE FATHER IS NATURAL GUARDIAN AND HIS CLAIM IS SUPERIOR FOR THE

CUSTODY OF CHILD?
In respectfully submitted in response to that according to the Section 6 of the Hindu Minority
and Guardianship Act, 1956 father is the natural guardian of the child hence the decision of
the High Court transferring the custody of child in the light of welfare is justified.

V. WHETHER THE REMARRIAGE OF THE APPELLANT WOULD AMOUNT TO TERMINATION OF

GUARDIANSHIP?

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It is humbly submitted that remarriage by other will adversely affect the mental condition of
child and thus remarriage by the appellant would amount to termination of Guardianship and
would warrant transfer the custody of child to father.

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ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

In response to this issue, the counsel humbly submits before the Hon’ble Court that the
Special Leave Petition [herein after referred to as SLP] is not maintainable in the instant case.
Art. 136 (1) of the Constitution of India provides that “the Supreme court may, in its
discretion, grant Special Leave to appeal from any judgment, decree, determination, sentence
or order in any cause of matter passed or made by any court or tribunal in the territory in
India.”1

Hence, by virtue of this article a person can be granted Special Leave in civil cases, in
criminal cases, in income tax cases, in cases which come up before different kinds of
tribunals, and any variety of other cases.2

Furthermore, it was held in the case of Engineering Mazdoor Sabha v Hind Cycles Ltd.3 that
the authority whose act is complained against must be a Court or Tribunal. Moreover, the
determination or order sought to be appealed from must have the character of a judicial
adjudication.4 Hence, the jurisdiction of this Hon’ble Court has been invoked for an appeal
from the judgment of the High Court of Rajasthan.

Further, SLP signifies that there is special power bestowed upon the Supreme Court of India
not to be invoked in a routine fashion but in very exceptional circumstances as when a
question of law of general public importance arises or a decision sought to be impugned
before the Supreme Court shocks the conscience.5

Moreover, it was observed in Mathai Alias Joby v George6 that the use of the words in Art.
136 of the Constitution of India does not confer a right of appeal upon any party but merely
vests discretion in the Supreme Court to interfere in exceptional cases where there is some

1
The Constitution of India, Art. 136 (1).
2
Pritam Singh v State, AIR 1950 SC 169.
3
Engineering Mazdoor Sabha v Hind Cycles Ltd. AIR 1963 SC 874.
4
Jaswant Sugar Mills Ltd. v Lakshmi ChandAIR 1963 SC 677.
5
Jamshed Hormusji Wadia v Board of Trustees, Port of Mumbai AIR 2004 SC 1815.
6
Mathai Alias Joby v George, (2010) 4 SCC 358.
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manifest illegality or grave and serious miscarriage of justice is involved. The similar view
was also cited in Tirupati Balaji Developers Pvt. Ltd. v State of Bihar7 and Narpat Singh v
Jaipur Development Authority8.

It was also reiterated in Basudev Hazra v Matiar Rahaman Mandal 9that Art. 136 only
confers a discretionary power on the Supreme Court to be exercised sparingly to interfere in
suitable cases where grave miscarriage of justice has resulted from illegality or
misapprehension or mistake in reading evidence or from ignoring, excluding or illegally
admitting material evidence.

Thus, in the case at hand, the Special Leave Petition should be dismissed because of lack of
question of law. Hence, the submission in this regard is-

[1.1] There is no grave miscarriage of justice

According to Black’s Law Dictionary, miscarriage of justice means a grossly unfair outcome
in judicial proceeding.10 Miscarriage of justice means such a departure from the rules which
permeate all judicial procedure as to make that which happen not in the proper sense of the
word a judicial procedure at all.11 In Nizam v State of Rajasthan12 it was held by the Apex
Court that where material aspects have not been taken into consideration and where the
findings of the Court are unsupportable from the evidence on record resulting
in miscarriage of justice, this Court will certainly interfere.

Moreover, in Shivnarayan Laxminarayan Joshi v State of Maharashtra13 it was held that if

the findings by High Court are vitiated by grave error of law or by an error which leads to
serious and substantial miscarriage of justice, it would warrant the interference of the
Supreme Court. Thus, where the several important circumstances have not been taken into

7
Tirupati Balaji Developers Pvt. Ltd. v State of Bihar, AIR 2004 SC 2351.
8
Narpat Singh v Jaipur Development Authority, (2002) 4 SCC 666.
9
Basudev Hazra v Matiar Rahaman Mandal, AIR 1971 SC 722.
10
Black’s Law Dictionary 1088 (9thedn 2009).
11
Smt. Bibhabati Devi v Ramendra Narayan Roy (1947) 49 BOMLR 246.
12
Nizam v State of Rajasthan, Criminal Appeal No.413 of 2007 (Supreme Court of India, 04/09/2015).
13
Shivnarayan Laxminarayan Joshi v State of Maharashtra, AIR 1980 SC 439.
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 MEMORIAL ON BEHALF OF RESPONDENT

consideration by the Trial Court and the High Court resulting into serious miscarriage of
justice, it would render the interference by the Apex Court.14
Furthermore where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on record, the Supreme Court can exercise its
discretionary power under Art.136 to interfere in such a case.15

Arguendo
It is true that the High Court is entitled to reappraise the evidence in the case. It is also true
that under Art. 136, the Supreme Court does not ordinarily reappraise the evidence for itself
for determining whether or not the High Court has come to a correct conclusion on facts but
where the High Court has completely missed the real point requiring determination and has
also on erroneous grounds discredited the evidence, the Supreme Court would be justified in
going into the evidence for the purpose of satisfying itself that grave injustice has not resulted
in the case.16

Further, the sentence to be awarded has to be considered in the background of the fact of each
case and the Court while doing so should bear in mind the principle of proportionality.17

Hence, in the instant case, civil appeal deserves to be dismissed because there has been no
error done by the High Court in granting custody to father who is his natural guardian.
Moreover father is economically and financially sound to fulfill the need of the child which is
best in the welfare of child. There remarriage by appellant has negatively impacted
upbringing of child. Thus here father is fit person as a Guardian and for taking custody of
child and in applying courts discretion the said civil appeal should be dismissed.

II. WHETHER THE CUSTODY OF CHILD GIVEN TO FATHER AMOUNTS TO “WELFARE OF CHILD”?

14
Bhagwan Singh v State of Rajasthan (1976) 1 SCC 15.
15
Ganga Kumar Srivastava v State of Bihar (2005) 6 SCC 211.
16
Sham Sunder v Puran (1990) 4 SCC 731.
17
Deo Narain Mandal v State of U.P. (2004) 7 SCC 257.
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 MEMORIAL ON BEHALF OF RESPONDENT

In response to this issue, the counsel humbly submits before this Hon’ble Court that the
principles in relation to the custody of a minor child are well settled. In determining the
question as to who should be given custody of a minor child, the paramount consideration is
the `welfare of the child' and not rights of the parents under a statute for the time being in
force. Thus father given custody does not amount to welfare of child. Thus it is submitted that
as a fit natural guardian custody of the child should remain in the hands of father.

In Rosy Jacob v. Jacob A. Chakramakkal,18, Supreme Court held that the children are not
mere chattels; nor are they mere play-things for their parents. The object and purpose of 1890
Act is not merely physical custody of the minor but due protection of the rights of ward's
health, maintenance and education. The power and duty of the Court under the Act is the
welfare of minor. In considering the question of welfare of minor, due regard has of course to
be given to the right of the father as natural guardian but if the custody of the father cannot
promote the welfare of the children, he may be refused such guardianship.

(2.1) Custody given to father is best for the welfare of child.

It is humbly submitted that in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka19, this
Court reiterated that the only consideration of the Court in deciding the question of custody
of minor should be the welfare and interest of the minor. And it is the special duty and
responsibility of the Court. Mature thinking is indeed necessary in such situation to decide
what will enure to the benefit and welfare of the child.

Further, in Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu20,this Court held
that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that
provision cannot supersede the paramount consideration as to what is conducive to the
welfare of the minor. The same was reiterated in Elizabeth Dinshaw (Mrs.) v. Arvand M.
Dinshaw21, Chandrakala Menon (Mrs.) v. Vipin Menon (Capt)22.

18
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
19
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544.
20
Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698.
21
Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42.
22
Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6.
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 MEMORIAL ON BEHALF OF RESPONDENT

23
Moreover in case of Mousami Moitra Ganguli v.. Jayant Ganguli the Court has given due
weightage to the child's ordinary contentment, health, education, intellectual development
and favourable surroundings but over and above physical comforts, the moral and
ethical values have also to be noted. They are equal if not more important than the others.

Thus, from the catena of cases 24. it is clear that the word ‘welfare’ used in Section 13 of the
Act has to be construed liberally and must be taken in its widest sense .The moral and ethical
welfare of the child must also weigh with the Court as well as its physical well being. Though
the provisions of the special statutes which govern the rights of the parents or guardians may
be taken into consideration, there is nothing which stands in the way of the Court exercising
its parens patriae jurisdiction arising in such cases.

It is submitted that in instant case the respondent is financially better than the appellant. 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.

Moreover the child is not able to reconcile with his uprooting from his home and denial of
love and affection of the father. The respondent is financially sound and able to cater to all
the needs of the child for his development whereas the appellant is unable to provide the
same since she is living all alone. There is nothing on record to suggest that the welfare of the
child is in any way in peril in the hands of the father.

Arguendo
The respondent-husband submits that the welfare of the minor child is the only interest in the
remaining life of the respondent for which he is prepared to take any pain and task in life.
The respondent being a natural guardian of the child, the boy who is 12 years old will find it
difficult to adjust with his step-father

Concluding his arguments, he submitted that the respondent has purchased a car and arranged
the driver for the convenience of the child from the house of the respondent to the school and
back and that he can also engage good teachers and tutors for giving special attention to the

23
Mousami Moitra Ganguli v.. Jayant Ganguli, (2008) 7 SCC 673.
24
Gaurav Nagpal v. Sumedha Nagpal, 2008(4) RCR (Civil) 928.
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 MEMORIAL ON BEHALF OF RESPONDENT

studies of the child. It is further submitted that the respondent's mother who is alone at home
is very healthy and active

(2.2) Public Interest was hampered because of the impugned judgment of High court

It is vehemently submitted that second justification behind the 'welfare' principle is the public
interest that stand served with the optimal growth of the children. It is well recognised that
children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric
has been recognised in many international covenants, which are adopted in this country as
well. Child-centric human rights jurisprudence that has been evolved over a period of time is
founded on the principle that public good demands proper growth of the child, who are the
future of the nation. It has been emphasised by this Court also, time and again, in cases like
in Bandhua Mukti Morcha v. Union of India & Ors25:

Thus, it is submitted that child in this case not the child of the parties of the case but he is
child of the nation and in best interest the custody should remain in hands of the father.

III. WHETHER THE CHILD WAS MATURE, INTELLIGENT ENOUGH TO UNDERSTAND THE

FACTS? WHETHER THE CHILD WAS GIVEN OPPORTUNITY TO HEARD OR INTERVIEWED BY

THE HIGH COURT TO SHOW HIS WILLINGNESS?

It is submitted that in the instant case that child is only 12 years old and is not capable of
forming any intelligent, prudent or well reasoned preference of a parent and to understand the
circumstances which would be good for him. In addition as at the time case was adjudicated
he was not so mature so High Court did right by not interviewing the child. Further it has
been stated in the Child Access and Custody Guidelines along with Parenting plan which is
recognized in the various courts of the country that:

“62.CHILD'S WISHES: Often the Family court decides the child's custody based on the
wishes of the child during an interview which the court conducts on the child of tender age
who is not his own master and is not capable of forming any intelligent, prudent or well

25
Bandhua Mukti Morcha v. Union of India & Ors., (1997) 10 SCC 54.
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 MEMORIAL ON BEHALF OF RESPONDENT

reasoned preference of a parent. (in other words if child expresses he/she is unwilling to go
to school, will the Family court honour the wishes,). The court has to ensure the welfare and
the best interest of the child's upbringing and not to be influenced by the mere wish of the
child especially in some cases where the child is heavily tutored or brainwashed or poisoned
against the noncustodial parent while deciding custody.

Under the circumstances of brainwashing, tutoring, poisoning, to alienate the child from the
non-custodial parent, the Custody should be shifted from the custodial parent to the non-
custodial parent who will ensure the child with love and affection of both the parents.”

Further in The Genesis of False Accusation an award

winning book published by the American Psychological Association shows just how
easily children can be manipulated to give false accounts of bad things which have happened
to them.

Moreover in Supreme Court Jitender Arora v. Sukriti Arora26 held at paragraphs 15 under:

15. We also had interaction with Vaishali in the chambers earlier. On the date of
hearing also, Vaishali was present in the Court and in front of her parents, she
unequivocally expressed that she was happy with her father and wanted to continue in
his company and did not want to go with her mother, much less to UK. From the
interaction, it is clearly discernible that she is a mature girl who is in a position to
weigh the pros and cons of two alternatives and to decide as to which course of action
is more suited to her. She has developed her personality and formed her opinion after
considering all the attendant circumstances. Her intellectual characteristics are
adequately developed. She is able to solve problems, think about her future and
understands the long-term effects of the decision which she has taken. We also find
that she has been brought up in a conducive atmosphere. It, thus, becomes apparent
that in the instant case, we are dealing with the custody of a child who is 15 years of
age and has achieved sufficient level of maturity. Further, in spite of giving ample
chances to the respondent by giving temporary custody of Vaishali to her, the
respondent has not been able to win over the confidence of Vaishali. We, therefore,

26
Arora v. Sukriti Arora26 (2017)3 SCC 726.
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 MEMORIAL ON BEHALF OF RESPONDENT

feel that her welfare lies in the continued company of her father which appears to be
in her best interest.

Furthermore, the Hon’ble Supreme Court while dealing with the custody of minor child aged
about nine years in the case of Nil Ratan Kundu v. Abhijit Kundu 27held at paragraphs 52 and
72 as under:

52. In our judgment, the law relating to custody of a child is fairly well settled and it
is this: in deciding a difficult and complex question as to the custody of a minor, a
court of law should keep in mind the relevant statutes and the rights flowing
therefrom. But such cases cannot be decided solely by interpreting legal provisions. It
is a human problem and is required to be solved with human touch. A court while
dealing with custody cases, is neither bound by statutes nor by strict rules of evidence
or procedure nor by precedents. In selecting proper guardian of a minor, the
paramount consideration should be the welfare and well-being of the child. In
selecting a guardian, the court is exercising parens patriae jurisdiction and is
expected, nay bound, to give due weight to a child's ordinary comfort, contentment,
health, education, intellectual development and favourable surroundings. But over
and above physical comforts, moral and ethical values cannot be ignored. They are
equally, or we may say, even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent preference or
judgment, the court must consider such preference as well, though the final decision
should rest with the court as to what is conducive to the welfare of the minor.

72. We have called Antariksh in our chamber. To us, he appeared to be quite

intelligent. When we asked him whether he wanted to go to his father and to stay with
him, he unequivocally refused to go with him or to stay with him. He also stated that
he was very happy with his maternal grandparents and would like to continue to stay
with them. We are, therefore, of the considered view that it would not be proper on
the facts and in the circumstances to give custody of Antariksh to his father, the
respondent herein.”.

27
Ratan Kundu v. Abhijit Kundu (2008)9 SCC 413.
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 MEMORIAL ON BEHALF OF RESPONDENT

In this instant case child should not 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
and in addition from so long since their separation child was living with mother he may be
manipulated or tutored by appellant to give false accounts against respondent. Conclusively ,
it is submitted that the order of the High Court is justifiable seeing the peculiar facts and the
circumstances of the case.

IV. WHETHER THE APPELLANT WAS FINANCIALLY SOUND TO TAKE CUSTODY OF THE CHILD?
WHETHER THE FATHER IS NATURAL GUARDIAN AND HIS CLAIM IS SUPERIOR FOR THE

CUSTODY OF CHILD?

In response to this issue it is submitted that under the Hindu law, father is the natural
guardian of minor after the age of 6 years and thus father is the fit Natural Guardian and his
claims stands superior for the custody of child.

In, Shaik Moidin v. Kunhadevi28,the Court held that prima- facie in the eye of the law, the
father is the natural guardian and custodian of the person of his child. We are fortified in this
view by the authority of the Madras High Court in Sura Reddy vs. Chenna Reddy29 where
Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to
be a guardian of the person and property of the minor under ordinary circumstances .

It is humbly submitted that welfare of the child is paramount consideration for father and in
the record nowhere it shows that father is unfit as guardian thus High Court did right by
transferring custody of child should in hands of father.

In the case of Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan30 ,High Court held
that the welfare of the child is determined neither by the economic affluence nor a deep
mental or emotional concern for the well being of the child. The answer depends on the
balancing of all these factors and determining what is best for the child’s total well being.
Held that the father being a Sergeant in the Indian Army who had a record of disciplined life
with a regular income, was willing to get posted to Kozhikode for the education of the minor

28
Shaik Moidin v. Kunhadevi, AIR 1929 Madras 33.
29
Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306.
30
Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan, AIR 1992 Ker 290.
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and the parents of the father were affluent enough to look after the minor unlike the parents
of the mother (who was dead) were old, had no proper source of income and also had a
mentally retarded son to look after, was in a better position to look after the welfare of the
minor.

Thus in the instant case there is no regular income of the appellant to fulfill the basic
requirements of the child. It is well known that now days there is lot of expenditure is spend
for the education by parents and education is becoming costly day by day. Therefore
appellant does not have resources to fulfill the needs of the child and this honorable High
Court was right in transferring the custody to respondent.

V. WHETHER THE REMARRIAGE OF THE APPELLANT WOULD AMOUNT TO TERMINATION OF

GUARDIANSHIP?
In response to this issue the counsel humbly submits that second marriage automatically
warrant a new custody arrangement. It is submitted that since the mother has remarried, she
would not devote her time for the welfare of the boy and that in the interest of the child, the
child should be given custody only to the father who is not only healthy but also have other
facilities to look after the child, his education and welfare

The Supreme Court in Athar Hussain v. Syed Siraj Ahmed and others31for contending that the
father is the natural guardian of a child.

"44. The second marriage of the appellant, though a factor that cannot disentitle him to the
custody of the children, yet is an important factor to be taken into account. It may not be
appropriate on our part to place the children in a predicament where they have to adjust with
their stepmother, with whom admittedly they had not spent much time as the marriage took
place only in March 2007, when the ultimate outcome of the guardianship proceedings is still
uncertain."

It is vehemently submitted that the appellant in her statement before the Addl. District Judge
had stated that she would not remarry in life and would look after the child, which fact has

31
Athar Hussain v. Syed Siraj Ahmed and others, (2010) 2 SCC 654.
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 MEMORIAL ON BEHALF OF RESPONDENT

been specifically stated in the judgment of the trial Court and in the High Court. But quite
contrary to the statement, the appellant immediately after the judgment of the District Judge
remarried.

32
In Rajesh K. Gupta vs Ram Agarwal it 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
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.

In Harpal Kaur Santosh Singh vs Mohinder Kaur33 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
Court reversed the decision on the ground of child’s wishes and the fact that the mother was
leading an unchaste life.

Arguendo

It is submitted that the minor’s welfare will be at risk because it would be difficult for him to
cope up with his step- father. 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 appellant the welfare of the minor
will be at the losing end and hence the respondent’s guardianship should be terminated.

32
Rajesh K. Gupta vs Ram Agarwal, AIR 2005 SC 24265.
33
Harpal Kaur Santosh Singh vs Mohinder Kaur, 1983 HLR 28 (P&H).
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PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, THE RESPONDENT RESPECTFULLY SUBMITS BEFORE THIS

HON’BLE COURT TO ADJUDGE AND DECLARE THAT:

[1] THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

[2] GRANT THE CUSTODY OF THE CHILD IN FAVOR OF THE RESPONDENT BY THE HIGH COURT IS
IN WELFARE, INTEREST AND PROGRESS OF THE MINOR.

[3] THAT THE CHILD IS NOT MATURE, INTELLIGENT ENOUGH TO UNDERSTAND THE FACTS AND
THE HIGH COURT DID RIGHT BY NOT INTERVIEWING THE CHILD.

[4] THAT THE FINANCIAL CONDITION OF THE MOTHER IS WEAK AND SHE IS NOT
ECONOMICALLY SOUND TO GIVE PROPER UPBRINGING OF CHILD.

[5] THAT THE REMARRIAGE OF THE APPELLANT WOULD AMOUNT TO TERMINATION OF

GUARDIANSHIP AS IT WOULD NEGATIVELY IMPACT CHILD CHILDHOOD.

AND TO PASS ANY SUCH ORDER OR JUDGMENT AS THIS HON’BLE COURT MAY DEEM FIT IN
THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted

Sd/- ______________________

COUNSEL FOR THE RESPONDENT

PLACE- NEW DELHI

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