THE 22nd SRI. S. C.

JAVALI MEMORIAL

NATIONAL MOOT COURT COMPETITION

KARNATAK UNIVERSITY’S

SIR SIDDAPPA KAMBLI LAW COLLEGE, DHARWAD

THE SUPREME COURT OF CINDIA

BETWEEN:

Mr. ANKUR PATEL (APPELLANT RESPONDENT)

AND

Dr. ROHINI MULLICK (RESPONDENT APPELLANT)

MEMORIAL OF APPELLANT RESPONDENT (Mr. Ankur Patel)

 TABLE OF CONTENTS

1) Table of Abbreviations

2) Index of Authorities

3) Statement of Jurisdiction

4) Statement of Facts

5) Issues raised

6) Summary of Arguments

7) Arguments Advanced

8) Prayer
 TABLE OF ABBREVIATION

AIR All India Reports

Anr. Another

Art. Article

Bom Bombay

Ed. Edition

i.e. That Is

IBR Indian Bar Review

Mad Madras

O. Order

Ors. Others

rr Rules

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

U.P. Uttara Pradesh

UOI Union of India

USA United States of America

v. Versus
 INDEX OF AUTHORITIES

TREATIES and CONVENTIONS:

1) International Covenant of Civil and Political Rights (1976)

2) Universal Declaration of Human Rights (1948)

Books Referred

1) Chakraborty R. Law Relating to Guardians and Wards, 1st Ed., (Orient Publishing

Co.)

2) Jain M. P. Cindian Constitutional Law, 7th Ed., (Lexis Nexis)

3) Law and Justice an Anthology, (Universal Law Publishing Co. Pvt. Ltd.)

4) Mulla Dinshaw Fardunji Mulla Hindu Law, updated 21st Ed., (Lexis Nexis)

3) Naikar Lohit D. The Laws Relating to Human Rights, 2004 new Ed., (Pulani &Pulani)

5) Ronald E. Kleinman, Pediatric Nutrition Handbook, 5th ed., (American Academy of

Pediatrics)

6) Samuel Warren, Louis Brandeis, The Right to Privacy, Harvard L.R.,(Harvard Law

School)

7) Sarkar M. C. Specific Relief Act, (Act 47 of 1963), 13th Ed., (S. C. Sarkar & Sons Pvt.

Ltd.)

8) Sohoni Vishwas Shridhar, Sohoni Sameer Vishwas The Specific Relief Act, 1963,

1994 Oct Ed., (Premier Publishing Co.)

CASES REFERRED

1. Githa Hariharan v. Reserve Bank of Cindia, (1999) 2 SCC 228

2. Gohar Begum v. Sougi AIR 1960 SC 93

3. K. S. Puttaswamy & Anr. v. Union of India, (2017) 10 SCC 1

4. Kadiappa v. Valliammal AIR 1949 Mad 608

5. Kharak Singh v. State of U. P., (1964) 1 SCR 332

6. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

7. Prabodh Verma v. State of UP, (1984) 4 SCC 251.

8. Samuel v. Stella AIR 1955 Mad 451

9. Saraswatibai v. Sripad AIR 1941 Bom 103

10. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75;

11. Tara Bhai v. Mohan Lal AIR 1932 Bom 402

STATEMENT OF JURISDICTION:

It is humbly submitted that the Appellant respondant has approached this Hon’ble Court under

Article 136 of the Constitution of Cindia.

Article 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 or matter passed or made by any court or tribunal in the territory of Cindia.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed

or made by any court or tribunal constituted by or under any law relating to the Armed Forces
 Statement of Facts:

Appellant and Respondent developed a misunderstanding and were separated by agreeing

mutually, they also had stipulation that Appellant could visit and meet their daughter Shruthi

in flat at West Park. Without the Respondent’s knowledge a tiny digital video camera was

installed before separation by the Appellant, with the intention to safeguard his daughter’s

safety, disgruntled by this action of the appellant, respondent filed a civil suit against the

appellant that right to privacy of the respondent is violated and also to claim damages and

injunction to restrain the Appellant to meet their daughter. Subsequently, City Civil Court,

Sangalore passed a decree by holding appellant as guilty of violating the right to privacy while

refusing to grant injunction to meet his daughter in the flat at West Park. The High Court

rejected the Miscellaneous First Appeals. Being aggrieved by the same both appellant and

respondent has sought special leave to this Hon’ble Apex Court.

 Issues raised

1) Whether Right to Privacy of the Respondent is violated by the Appellant by

placing a digital video camera?

2) Whether injunction shall be granted, restraining Appellant to meet his daughter

in the flat at West Park?

 Summary of Arguments

1) Whether Right to Privacy of the Respondent is violated by the Appellant by placing a

tiny digital video camera?

- No, The Appellant has not violated the right to privacy of the Respondent. Appellant

contends that he had installed the digital video camera before the separation of the

couple for the safety of their minor daughter Shruthi. Appellant and Respondents

are working professionals where they could not get enough time to look over

Shruthi. In such a condition a digital video camera can be a basic step to monitor

minor and the premises where minor girl child is present. There was no intention of

appellant to violate any right to privacy of the respondent.

2) Whether injunction should be granted, restraining Appellant to meet his daughter in

the flat at West Park?

- No, Injunction shall not be granted restraining Appellant to meet his daughter in the

flat at West Park. The appellant urges before this Hon’ble Apex court that, it is the

prima facie case that the appellant cannot meet his daughter in his own residence

which shows that the respondent is interfering in both father-daughter relationship

and also with the substantial enjoyment of the property. This may cause irreparable

injury and adequacy of mischief and inconvenience if the injunction is granted.

 Arguments advanced

Issue – 1 – Whether Right to Privacy of the Respondent is violated by the Appellant by

placing a tiny digital video camera?

It is humbly submitted before this Hon’ble Court that, No, The Appellant has not violated the

right to privacy of the Respondent.

The drafting committee of Constitution of Cindia did not expressly include the right to privacy

as a fundamental right, but, Article 19(1)(a),19 (1)(d) and 21 of Constitution of Cindia are

implying protecting the privacy of an individual. Recognition of right to privacy in Cindia dates

back to 1962 in Kharak Singh v. State of U.P1 case. In subsequent cases like Maneka Gandhi

Vs. UOI2 and K.S. Puttaswamy & Anr v. Union of India,3 the Apex Court dictated the

importance of right to privacy4. At the same time all the judgments on violation of privacy of

an individual, fix themselves to a corner which indicates that the right to privacy of an

individual is not an absolute right. It may develop from case to case and reasonability. In usual

cases the space of individual’s right to privacy overlaps with others rights or State’s safety, in

such condition the judiciary interferes with good conscience to uphold the justice.

"However painful the mental effects upon act of another, though purely wanton or even

malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque

injuria"5 i.e., a loss, damages or injury suffered from which there is no legal cause of action.

Appellant contends that he had installed the digital video camera before the separation of the

couple for the safety of their minor daughter Shruthi. Sec. 8 of Hindu Minority and

1
(1964) 1 SCR 332
2
(1978) 1 SCC 248
3
(2017) 10 SCC 1
4
M. P. Jain, Indian Constitutional Law, 7th edition, 1168-1169
5
"The Right to Privacy" (4 Harvard L.R. 193 (Dec. 15, 1890)) by Samuel Warren and Louis Brandeis
Guardianship Act, 1956 protects the interest of a guardian to take necessary steps to safe guard

a minor child and its premises. Appellant and Respondents are working professionals where

they could not get enough time to look over Shruthi. In such a condition a digital video camera

can be a basic step to monitor minor the premises where minor girl child is present. Sec. 13 of

Hindu Minority and Guardianship Act, 1956 considers welfare of a minor as a paramount

priority.

The digital video camera was installed in a drawing room which is common to all rooms in

house where Shruthi would spend her most time. The location of the camera installed shows

that the appellant was nowhere intended to record the private life of respondent. If his intention

was to record the private life of respondent as alleged, he would have installed in private spaces

in the flat like bedroom or a bathroom. The respondent admitted that she was never blackmailed

nor harassed which indicates that the appellant was not interested in recording her private life.

There is no reason internationally recognized busy man record the private life of his estranged

wife. It shows a bona-fide intention of protecting his child as the respondent was busy in

chatting with her male classmates.

There is no proper report on the operationality of the video camera and the content recorded in

it. There is no examination of the recordings whether the respondent is imaged in video camera

recordings. Moreover, even if she is imaged in those video footages, in what condition she is

imaged matters. If she was recorded in video footages in a regular dressed condition as she

shows up herself to few ten thousand of people every day, then that will not account to violation

of her right to privacy by her husband.

The Hon’ble Court committed error in granting one crore compensation even after the

respondent not showing any basis for claiming such a huge amount. The large sum of money

gives way to show the malicious intention to extort money from the appellant using the
previously installed camera as an opportunity. Right to privacy is not an absolute right and

shall not overlap with protection and safety of a minor girl child about which only the appellant

is highly concerned.
Issue -2 – Whether injunction should be granted, restraining Appellant to meet his

daughter in the flat at West Park?

It is humbly submitted to this Hon’ble Court that, No, Injunction shall not be granted restraining

Appellant to meet his daughter in the flat at West Park.

The granting of injunction is regulated by Specific Relief Act, 1963, one purpose of the

enforcement of the laws is to maintain ease and order in society. The disputes relating to the

parties should be settled in a civilised manner by having recourse to law and not by taking the

law in own hands by the members of the society.

The appellant’s urge to this Hon’ble Apex Court is that, the claim of the respondent is

unjustified because the appellant’s duty over his child will be taken away. And also, the

appellant is the de facto owner of the property.

Perpetual injunction as per the Specific Relief Act, 1963, may be granted to the plaintiff, when

the defendant has caused breach of an obligation when existed in his favour or when any such

obligation arises from contract or when the defendant invades or threatens to invade the

plaintiff right to enjoyment of property, the court may grant the perpetual injunction where

there exists no standard for ascertaining the actual damage caused or likely to be caused, by

the invasion.

The appellant urges before this Hon’ble Apex court that, it is the prima facie case that the

appellant cannot meet his daughter in his own residence which shows that the respondent is

interfering in both father-daughter relationship and also with the substantial enjoyment of the

property. This may cause irreparable injury and adequacy of mischief and inconvenience if the
perpetual injunction is granted. It will also injure the share of affection given by the father to

his daughter. In Anuj Chaturvedi v. Jyoti,6 Apex Court observed that, a child has the right to

affection of both his parents, the Apex court remarked while considering the special leave

petition filed by a father.

In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh,

(1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury which cannot be

adequately remedied by damages. The remedy by damages would be inadequate if the

compensation ultimately payable to the plaintiff in case of success in the suit would not place

him in the position in which he was before injunction was refused. In Dalpat Kumar & Anr. v.

Prahlad Singh & Ors.,7the Supreme Court explained the scope of aforesaid material

circumstances, but observed as under:- “The phrases `prima facie case’, `balance of

convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width

and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and

circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends

of justice. The facts rest eloquent and speak for themselves. It is well-nigh impossible to find

from facts prima facie case and balance of convenience.” No injunction could be granted under

Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 unless the plaintiffs establish

that they had a prima facie case, meaning thereby that there was a bona fide contention between

the parties or a serious question to be tried. The question that must necessarily arise is whether

in the facts and circumstances of the case, there is a prima facie case.

The flat at West Park was bought by the appellant out of the money inherited from his father,

which means acquisition of the property is made by the appellant’s father which in turn is a the

6
Anuj Chaturvedi v. Jyothi, Petition for special leave to appeal No. 6303/2017
7
AIR 1993 SC 276
property of the appellant from nucleus of the joint family. As observed by the Hon’ble Apex

Court in Narayanaswamy Vs. Ramakrishna 8 the legal position is well settled that if in fact at

the date of acquisition of a particular property the joint family had sufficient nucleus for

acquiring it, the property in the name of any member of the joint family should be presumed to

be acquired out of family funds and so to form part of joint family property, unless the contrary

is shown.

The majority of the cases under the Hindu Succession Act, 1956, related to the interpretation

and application of section 14, that is to say, whether a female by virtue of that section acquired

absolute ownership of a certain property. The Hon’ble Apex Court case of Kotturuswami

Vs. Veeravva9 was naturally the bedrock of almost all the judgments, but it is interesting to note

how judicial opinion has diversified subsequently. Many of the cases, of course, fell within the

ratio of Kotturuswami and merely followed it, but in a few instances, points of distinction were

noted permitting an independent line of thought. Thus, in Nathuni Prasad Vs. Mst. Kachnar10

the word "possessed," as expounded by the Supreme Court, was held not to cover the

possession of a trespasser holding adversely to a widow. It was said that the term would not

include a mere right to possession or to recover possession through the assistance of a court of

law. Hence in respect of property which had gone out of the ownership and possession of a

Hindu widow under a dedication to a deity prior to the passing of the Hindu Succession Act,

1959, she could not acquire absolute ownership in it.

In Nair Service Society Ltd. Vs. K C Alexander11 the Hon’ble Apex Court was concerned with

the suit which was filed on the basis of possessory title. The dispute was between two

8
AIR 1965 SC 289
9
AIR 1959 SC 577
10
AIR 1965 PAT 160
11
AIR 1968 SC 1165
trespassers. The owner was the third person i.e., the State. It was not made a party to the suit.

In between the two trespassers, the trespasser in possession was found to have better title i.e.,

possessory title, than the trespasser out of possession. That was a not a case in which injunction

was sought and granted against the true owner. Even in this decision the Hon’ble Apex Court

approved the decision of the Privy Council in Perry Vs. Clissold12 and affirmed the principle

that possession is good against all but the true owner.

12
1967 AC 73
 Prayer

In light of the issues raised, arguments advanced and authorities cited, the counsels for the

Appellant humbly pray that the Hon’ble Apex Court be pleased to adjudge, hold and declare

that:

1) The Appeal filed by the Appellant be allowed and the Judgment passed by the

Hon’ble High Court on the Miscellaneous First Appeal filed by the Respondent,

seeking violation of Right to Privacy be set aside.

2) The Appeal filed by the Respondent under Article 136 of the Constitution of Cindia.,

seeking grant of injunction restraining Appellant to meet his daughter in flat at West

Park be dismissed.

3) And pass any order that this Hon’ble Apex Court may deem fit in the interest of

equity, justice and good conscience. And for this act of kindness, the counsel for the

Appellant shall duty bound forever pray.

Date: 19.10.2019

Place: New Delhi Advocate for Appellant