BEFORE THE HON’BLE SUPREME COURT F INDIA

In the matter of

NIL RATAN KUNU AND

ANOTHER

(Appellant)

Vs

ABHIJIT KUNDU

(Respondent)

UPON SUBMISSION TO THE SUPREME COURT

MEMORANDUM FOR THE RESPONDENT

DATE OF SUBMISSION: 08/04/2019

COUNSEL FOR THE RESPONDENT

(HIMANSHU TARAM)

Semester: II, Sec: C, Roll No.: 54

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

 TABLE OF CONTENT

List of Abbreviations…………………………………………………..

Index of Authorities……………………………………………………

Statement of Jurisdiction……………………………………………….

Statement of Facts……………………………………………………...

Issues Raised…………………………………………………………...

Summary of Arguments………………………………………………..

Arguments Advanced………………………………………………….

Prayer of Relief
ABBREVIATIONS EXPANSIONS
& And
Vs Versus
Sec Section
AIR All India Reporter
SC Supreme Court
HC High Court
ICA Indian Contract Act
CA Carriers Act AC
Appeal Case i.e. That is
Para. Paragrapgh Rs.
Rupees Hon’ble Honourable Dtd.
Dated
 LIST OF ABBREVIATIONS

CONSTITUTION:

 Constitution of India Article 136

STATUTES:

 HINDU MINORITY AND GUARDIANSHIP ACT, 1956

DATABASES:
 Manupatra
 Indian Kanoon
 SCC Onlin
 STATEMENT OF JURISDICTION

THE RESPONDENT HAS THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIA, THE MEMORANDUM FOR THE RESPONDENT IN AN
APPEAL FILED BY THE APPELLANT UNDER ARTICLE 136 OF THE CONSTITUTION
OF INDIA.
-Issues Raised- - Respondent-

STATEMENT OF FACTS

 The appeal is filed against the judgment and order passed by the Additional
District & Sessions Judge, Barasat on July 15, 2006 and confirmed by the High
Court of Calcutta on December 7, 2007. By the impugned orders, both the Courts
below directed handing over custody of minor child Antariksh Kundu to father-
Abhijit Kundu, respondent herein.

 The appellants herein, (i) Nil Ratan Kundu and (ii) Smt. Kabita Kundu are maternal
grandfather and grandmother respectively of minor Antariksh, father and mother of
deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu-
respondent herein.

 In the night of April 9, 2004, as alleged by the appellants, Mithu was brutally
assaulted by the respondent and his mother and was brought to a hospital where she
was declared dead. Immediately on the next day i.e. on April 10, 2004, appellant
No.1 lodged First Information Report (FIR) against the respondent and his mother.

 On April 18, 2004, custody of Antariksh was handed over to the appellants.
Antariksh was found in sick condition from the residence of the respondent. At that
time, he was only of five years. It was his maternal Grandfather -appellant No.1,
who maintained the child with utmost love and affection. He was admitted to St.
Xavier's Collegiate School, Kolkata which is a well-known and well-reputed school
in the State of West Bengal.

 After due investigation of the case, on May 31, 2005, police submitted a charge-
sheet against the respondent and his mother and the criminal case is pending. After
the respondent was enlarged on bail, he filed an application under the Guardians
and Wards Act, 1890 (hereinafter referred to as `1890 Act') praying for custody of
Antariksh.
 The trial Court, after considering the evidence on record, allowed the application
and held that respondent was father and natural guardian of Antariksh and the
present and future of Antariksh would be better secured in the custody of
respondent. Accordingly it passed an order that custody of Antariksh be
`immediately' given to the father.
-Issues Raised- - Respondent-

 Being aggrieved by the said order, the appellants approached the High Court. But
the High Court also, by the order impugned in the present appeal, dismissed the
appeal holding that the trial Court was right in ordering custody to be given to the
father and the said order did not suffer from infirmity.
-Issues Raised- - Respondent-

ISSUES RAISED

 Whether the guardianship of Child should be given to father or maternal

grandparents?
-Issues Raised- - Respondent-

SUMMARY OF ARGUMENTS

1. guardianship of the child should be given to respondent-father,

When parents don’t die together in a common accident or disaster, the surviving parent
always retains custody of the child; this is not a guardianship situation. If the parents are
divorced, the non-custodial parent assumes full custody. If the parents were never
married, the child’s other biological parent can come forward and petition the court for
custody. Custody will almost always be granted, unless the court finds him to be unfit.
Another individual would be appointed as guardian only if the second parent dies. If the
second parent leaves a will naming a guardian, those wishes usually guide the court’s
decision. Otherwise, the court might look to the guardian named in the first parent’s will.
-Issues Raised- - Respondent-

ARGUMENTS ADVANCE

GUARDIANSHIP OF THE CHILD SHOULD BE GIVEN TO RESPONDENT

FATHER,

When parents don’t die together in a common accident or disaster, the surviving parent
always retains custody of the child; this is not a guardianship situation. If the parents are
divorced, the non-custodial parent assumes full custody. If the parents were never
married, the child’s other biological parent can come forward and petition the court for
custody. Custody will almost always be granted, unless the court finds him to be unfit.
Another individual would be appointed as guardian only if the second parent dies. If the
second parent leaves a will naming a guardian, those wishes usually guide the court’s
decision. Otherwise, the court might look to the guardian named in the first parent’s will

Respondent father , supported the order passed by the trial Court and 1 confirmed by the
High Court. It was urged that both the Courts below considered the relevant provisions of
law, the position of the respondent as natural guardian being father of Antariksh and the
facts in their entirety and held that there was no earthly reason to deprive him of custody
of minor Antariksh. The Courts felt that minor Antariksh also should not be deprived of
natural love and affection of his father in absence of mother.

Section 6 enacts as to who can be said to be a natural guardian.

Natural guardians of a Hindu Minor. —The natural guardians of a Hindu minor, in

respect of the minor’s person as well as in respect of the minor’s property (excluding his
or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother;
provided that the custody of a minor who has not 2 completed the age of five years shall
ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl— the mother, and
after her, the father.
(c) in the case of a married girl— the husband
Provided that no person shall be entitled to act as the natural guardian of a minor under
the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has
completely and finally renounced the world becoming a hermit (vanaprastha) or an
-Issues Raised- - Respondent-

ascetic (yati or sanyasi). Explanation.—In this section, the expressions “father” and
“mother” do not include a step-father and a step-mother.

Father is the natural guardian of a child in the absence of the mother,

rules the Bombay High Court

The Bombay High Court has granted custody of a boy child to his father holding that a
father is the natural guardian of his child. A Bench comprising Justices P V Hardas and A
S Gadkari was hearing a Writ Petition filed by Amol Pawar, seeking custody of his two
and a half year son who was being looked after by his maternal grandfather after the
father was arrested for allegedly murdering the child's mother

The Court has ordered the custody of the child to be handed over to his biological father
who was accused of murdering his wife. The Court observed that in the absence of a
mother, a child's natural guardian is the father. Amol Pawar, a resident of Satara, got
married in 2010. The couple were blessed with a son, Tejas, a year later. Pawar's wife
died of burn injuries in 2012. An FIR was lodged by his father-in-law Ramesh Dhotre
and Pawar was tried for cruelty meted out to his wife and murder. However Pawar had
been acquitted in the case filed against him and no appeal had been filed by the State. The
child is currently in the custody of his maternal grandfather who stays in Baramati, near
Pune.

The Bench has observed that the petitioner cannot be deprived of his right to obtain the
custody of his minor child as he has been acquitted and he is the natural guardian of the
minor child. Further, the Court said that if the respondents feel that the petitioner is
disentitled to continue the custody of the minor, they may avail the remedies available in
law.

The Bench observed that Pawar's father-in-law, however, would be at liberty to file
appropriate proceedings under the Hindu Minority and Guardianship Act for claiming
custody of the child. These proceedings if they are filed by the Respondent would be
decided in accordance with law. The Court while allowing the petition asked the
Respondent would be decided in accordance with law.

The Court while allowing the petition asked the Respondent to hand over the child to his
biological father, Amol Pawar. If the child's custody was not given to his father, the
bench directed the State Government and Police to help the father in getting his child's
custody from his grandfather.

Recently, the Madurai Bench of the Madras High Court had ruled that a father has a right
-Issues Raised- - Respondent-

to give his child for adoption and that the father is the legal guardian of the child after the
death of her mother.

In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148,

the High Court observed that it is true that father is a natural guardian of a minor child
and therefore has a preferential right to claim custody of his son, but in the matters
concerning the custody of minor child, the paramount consideration is the welfare of the
minor and not the legal right of a particular party. Section 6 of 1956 Act cannot supersede
the dominant consideration as to what is conducive to the welfare of the minor child.
It was also observed that keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out wishes of the child as to with whom he or
she wants to live.
-Issues Raised- - Respondent-

PRAYER OF RELIEF

Wherefore, in light of the facts stated, arguments advanced and authorities cited, the
Respondent humbly prays before the Hon’ble supreme court of India, that:

 The Respondent is liable to take a custody of his minor child

It further prays before the Hon’ble Supreme Court of India to uphold the validity of
the lower court’s verdict.

The court may also be pleased to pass any other order, which the court may deem fit in
light of justice, equity and good conscience.

All of which is most humbly prayed.

08th April, 2019 COUNSEL ON BEHALF OF THE RESPONDENT

HIMANSHU TARAM