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TEAM CODE- 13

PRESENTED BEFORE THE HONBLE


GAUHATI HIGH COURT

INTRA MOOT COURT


NEF LAW COLLEGE

MR. ANIL (APPELLANT)


VS.
MRS. RASHMI (RESPONDANT)

MEMORIAL FOR APPELLANT

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

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;

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
classmates 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:

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?

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

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?

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

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.

2.

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

10

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

11

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 minors 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
minors 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 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
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.

12

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

13

(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 classmates 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 mothers sister, the High

5 1983 HLR 28 (P&H)

14

Court reversed the decision on the ground of childs 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 classmates
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 childs 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

15

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

16

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.

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