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TEAM CODE: 011

BEFORE THE HONBLE SUPREME COURT OF INDIA


(UNDER ART. 136 OF THE CONSTITUTION OF INDIA)
W.A.(CIVIL) NO:

OF 2015

In the matter of:


Saritha Paramshetti

Appellant
V.

Raman Sundar &


Anr

Respondents

MEMORIAL ON BEHALF OF THE APPELLANTS


On submission
------------------

MEMORIAL ON BEHALF OF THE APPELLANTS

TABLE OF CONTENTS
SUBJECT

PAGE
NO

LIST OF ABBREVIATIONS

3, 4

INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED

B. LIST OF STATUTES REFERRED

C. LIST OF JOURNALS REFERRED

D. LIST OF WEBSITES REFERRED

E. LIST OF REPORTS REFERRED

LIST OF CASES REFERRED

7,8

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

10

STATEMENT OF ISSUES

11

SUMMARY OF ARGUMENTS

11

ARGUMENTS ADVANCED

12

PRAYER

29

MEMORIAL ON BEHALF OF THE APPELLANTS

LIST OF ABBREVATIONS
EDN

-EDITION

AIR

- ALL INDIA REPORTER

ART.

- ARTICLE

C.J.

- CHIEF JUSTICE

Cr.P.C

- CODE OF CRIMINAL PROCEDURE

DPSP

- DIRECTIVE PRINCIPLE OF STATE POLICY

HONBLE

- HONOURABLE

ICCPR

- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

UDHR

-UNIVERSAL DECLARATION ON HUMAN RIGHTS

I.P.C.

- INDIAN PENAL CODE

ANR

-ANOTHER

ORS.

- OTHERS

S.

- SECTION

SC

- SUPREME COURT

HC

-HIGH COURT

SCALE

- SUPREME COURT ALMANAC

SCC

- SUPREME COURT CASES

St.

- STATE

v.

-VERSUS

NO.

- NUMBER

PARA

-PARAGRAPH

CPC

-CIVIL PROCEDURE CODE

HMA

-HINDU MARRIAGES ACT

HMGA

-HINDU MINORITY AND GUARDIANSHIP ACT

GWA

-GUARDIANS AND WARDS ACT

UK

-UNITED KINGDOM

TN

-TAMIL NADU

ACHR

-AMERICAN CONVENTION ON HUMAN RIGHTS


MEMORIAL ON BEHALF OF THE APPELLANTS

PNJ

-PRINCIPLES OF NATURAL JUSTICE

DRC

-DECLARATION ON RIGHTS OF CHILD

ICESR

-INTERNATIONAL CONVENTION ON ECONOMICAL AND SOCIAL


RIGHTS

UNCRC

-UNITED NATIONS CONVENTION ON RIGHTS OF CHILD

FR

-FUNDAMENTAL RIGHTS

CEDAW -CONVENTION ON THE ELIMINATION OF ALL FORMS


OFDISCRIMINATION AGAINST WOMEN
U.S.A

-UNITED STATES OF AMERICA

MEMORIAL ON BEHALF OF THE APPELLANTS

INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED:

D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA

NAGPUR, 14TH EDN. (2009).


ARVIND. P .DATAR, DATAR ON CONSTITUTION OF INDIA, WADHWA &CO

NAGPUR, EDN (2001).


V.N.SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK CO, 12TH EDN.
P.M.BAKSHI, THE CONSTITUTION OF INDIA, UNIVERSAL LAW PUBLISHING

CO. 12TH EDN(2013).


OXFORD DICTIONARY,OXFORD UNIVERSITY PRESS.
CHESHIRE AND NORTH, PRIVATE INTERNATIONAL LAW, OXFORD, 13THEDN.
DICEY,MORRIS AND COLLINS, THE CONFLICT OF LAWS, SWEET AND

MAXWELL, 14THEDN.
MULLA, THE CODE OF CIVIL PROCEDURE, LEXIS NEXIS, 16THEDN.
PARAS DIWAN LAW OF ADOPTION AND GUARDIANSHIP, UNIVERSAL

PUBLISHERS,4TH EDN.
KUMUD DESAI, INDIAN LAW OF MARRIAGE AND DIVORCE,WADHA

PUBLISHERS, 7TH EDN.


DAVID.H.VERMON, LOUSIE WEINGBERG, WILLIAM L. REYNOLDS, WILLIAM
R. RICHMAN, CONFLICT OF LAWS, LEXIS NEXIS, 2ND EDN.

B. LIST OF STATUES REFERRED:


1. THE CONSTITUTION OF INDIA, 1950.
2. THE CODE OF CIVIL PROCEDURE, 1908.
3. HINDU MINORITIES AND GUARDIANSHIP ACT, 1956.
4. HINDU MARRIAGES ACT, 1955.
5. GUARDIANS AND WARDS ACT, 1890.
C. LIST OF JOURNALS REFERRED:
1. ALL INDIA REPORTER (AIR)
2. SUPREME COURT CASES (SCC)
MEMORIAL ON BEHALF OF THE APPELLANTS

3. SUPREME COURT ALMANAC (SCALE)


4. CRIMINAL LAW JOURNAL (Cri. L.J)
5. SUPREME COURT CASES CRIMINAL(SCC(Cri))
6. SUPREME COURT REPORTER(SCR)
D. LIST OF WEBSITES REFERRED:
1. www.manupatra.com
2. www.scconline.com
3. www.indialawsite.com
4. www.indiankanoon.org
5. www.legalserviceindia.com
6. www.lawcornell.com

E. LIST OF REPORTS REFERRED:


1. LAW COMMISSION REPORTS

TABLE OF CASES
INDIAN CASE LAWS

MEMORIAL ON BEHALF OF THE APPELLANTS

S.N

CAUSE TITLE

CITATION

MEMORIAL ON BEHALF OF THE APPELLANTS

1. Satya v. Teja singh

(1975) 1 SCC 120

2. Ruchi Majoo v Sanjeev Majoo

(2011) 6 SCC 479

3. Dhanwanti Joshi v Madhav Unde

(1998) 1 SCC 112.

4. Kuldip Nayar & Ors v Union Of India & Ors

(2006) 7 SCC 1

5. Elizabeth Dinshaw v. Arvand M. Dinshaw

(1987)1 SCC 42.

6. Surya Vadanan v. St of TN

(2015) 5 SCC 450

7. M/S International woolen mills v. M/S Standard Wool ltd

(2001) 5 SCC 265

8. Y.Narashimha Rao v. Y.Venkata Lakshmi

(1991) 3 SCC 451

9. Poonam Datta v. Krishna Lal Datta

1989 Supp(1) SCC 587

10. Sarita Sharma v. Sushil Kumar Sharma

(2000)3 SCC 14

11. Ravichandran v. UOI

(2010) 1 SCC 174

12. National Legal services authority v. UOI

(2014) 5 SCC 483

13. A.D.M.Jabalpur v. S.Shukla

(1976) 5 SCC 521

14. Kesavananda Bharati v. State of Kerala

(1973) 4 SCC 225

15. Air India v. Nergesh Meerza

(1981) 4 SCC 335

16. Municipal Corporation of Delhi v. Female Workers

(2000)3SCC 224

(Muster Roll) & Anr


17. Randhir Singh v. UOI

(1982) 1 SCC 618

18. Madhu Kishwar & Ors v. St. of Bihar

(1996) 5 SCC 125

19. Vishaka v. St of Rajasthan

(1997) 6 SCC 241

MEMORIAL ON BEHALF OF THE APPELLANTS

20. Anuj Garg v. Hotels Association of India

(2008) 3 SCC 1

21. Githa Hariharan & Anr v. Reserve Bank of India & Anr

(1999) 2 SCC 288

22. A.P. Aggarwal v. Govt. of NCT of Delhi & Anr.

(2000)1 SCC 600

23. E.P. Royappa v. State of Tamil Nadu & Anr.

(1974) 4 SCC 3

24. A.L. Kalra v. Project and Equipment Corp Ltd

(1984) 3 SCC 316

25. R.K. Garg v. Union of India & Ors

(1981)4 SCC 675

26. Re The Special Courts Bill 1978

(1979) 1 SCC 380

27. Ajay Hasia & Ors v. Khalid Mujib Sehravardi & Ors.

(1981) 1 SCC 722

HIGH COURT CASES:


S.N

CAUSE TITLE

CITATION

O
1.
2.
3.
4.
5.
6.
7.
8.

Sondur Rajini v Sondur Gopal


Wazir Sahu vs. Munshi Das
Sivagaminatha Pillai vs. K.Nataraja Pillai
Rajarathnam vs. Muthuswami Kangani
Mohamed Kasim v. Seeni Pakir Bin Ahmed
Aparna Banerjee v. Tapan Banerjee
Bhagyalakshmi & Anr v. K.N. Narayana Rao
R.Sridharan v. The Presiding Officer

2005 (4) Mah L.J. 688.


AIR 1941 Pat 109
AIR 1961 Mad 385
AIR 1958 Mad 203
AIR 1927 Mad 265
AIR 1986 P&H 113
AIR 1983 Mad 9
(2010) 4 CTC 822.

FOREIGN CASE LAWS:


S.N

CAUSE TITLE

CITATION

O
1.
2.
3.

Kernot v. Kernot
McKee vs. McKee
L.(minors) re

1965 Ch 217
1951 1 All ER 942
1974 1 WLR 250

MEMORIAL ON BEHALF OF THE APPELLANTS

STATEMENT OF JURISDICTION

This writ appeal filed at the instance of Saritha under Art. 136 of the Constitution of
India, involves questioning the constitutional validity of Section 6(a) of the HMA, 1956. It also
raises a question with regard to the maintainability of a divorce petition and an interim custody
Application submitted by Saritha. It also raises the question with regard to the enforcement of a
foreign court order in India. This Court being the Curator of the Fundamental Rights is vested
with jurisdiction to entertain this writ appeal under Art 136.

MEMORIAL ON BEHALF OF THE APPELLANTS

10

STATEMENT OF FACTS

Raman Sundar, a Hindu scientist from Bangalore joined a University in Texas, USA after
completing his Ph.D. in India and soon acquired US citizenship. He married Saritha a Hindu
software engineer from Mysuru on June 1999. The newly married couple after spending three
months in India left for the USA where she soon acquired citizenship. They had two children,
Nirmal a boy born in 2001 and Meghana a girl born in 2005 in USA.

Their marriage started deteriorating by June 2010. The children felt the alienation of their
father who took to alcohol. In his inebriated state Raman would verbally abuse his wife and
her parents. She bore the ill-treatment silently in order to save the marriage.

In October 2014 the family came to Mysuru. Raman returned after a week while Saritha and
the children stayed behind. The parents found out about the state of affairs. After much
thinking she informed Raman of her decision to stay back in Mysuru until he reformed.
Raman returned to India apologised and got back to USA with his family but he did not
improve which caused Saritha to move back to Mysuru where she admitted her children in a
local school.

In due course she filed a petition for divorce in a Mysuru Family Court in August 2015 which
ordered for issue of notice to Raman. Simultaneously he filed a petition in USA for the
custody of his children contending that they were US citizens and he was their guardian so it
was in their best interest to return to USA, he further filed a petition for restitution of
conjugal rights. Saritha later received a custody order from US Court which she ignored. In
October 2015, Raman moved the Karnataka HC for a writ to be issued to hand over the
MEMORIAL ON BEHALF OF THE APPELLANTS

11

children. Saritha contested that the order of the US Court was passed without hearing her and
thus was not binding and that she remained the rightful guardian in India. She then moved
the Mysuru Family Court for an interim order to retain custody and Raman received a
emergency notice.

Regarding the fathers right of custody, Saritha was advised to file a Writ Petition
challenging the constitutional validity Sec.6 [a] of HMGA 1956. The HC held that the father
is natural guardian of minors; the order of US court has to be enforced in India and upheld
the constitutionality.

Saritha now approaches the SC, challenging the HC judgment concerning validity of the
afore-mentioned provisions and also the scope of obedience in India to the order passed by
the US Court and further her right as a guardian. Raman contested that the Karnataka HC
order was valid. Pursuant to the notice sent in this regard, the UOI also defended the
constitutionality of the impugned provisions.

STATEMENT OF ISSUES
1) WHETHER THE DIVORCE PETITION AND PARTICULARLY THE INTERIM
APPLICATION FOR THE CUSTODY OF THE CHILDREN FILED BY SARITHA
IN THE FAMILY COURT AT MYSURU ARE MAINTAINABLE?
2) WHETHER THE ORDER OF THE US COURT IS ENFORCEABLE IN INDIA?
3) WHETHER S.6(a) OF THE HINDU MINORITY AND GUARDIANSHIP ACT,
1956 IS CONSTITUTIONALLY VALID?
4) WHETHER THE CUSTODY OF THE CHILDREN BELONGS TO THE
MOTHER?
SUMMARY OF ISSUES:
1

It is humbly submitted that the petitioners claim is maintainable before the Courts inIndia. The
Petition is maintainable under the jurisdiction of India based on the ordinary residence principle
and the undisputable fact that the Hindu Codes enforceability solely depends upon the religion
not territory.
MEMORIAL ON BEHALF OF THE APPELLANTS

12

It is humbly submitted that the USA Courts order is not enforceable in India as it falls within the
exceptions given in S.13 of the CPC. The order passed by the US Court is not based on merits
and is in violation with the general principles of International law. It is also submitted that there
has been violation of Principles of Natural Justice and the interest of Children has not been taken

into account before the US Court passed the order.


It is humbly submitted that S.6 (a) of the Hindu Minority and Guardianship Act 1956 is
unconstitutional. This can be substantiated as there is unequivocal violation of Part III of the
Constitution i.e. Art.14 and 15. There has also been outright infringement of Rule of law as the

classification made under S.6(a) is unreasonable and arbitrary.


The custody of the children should be given to the mother, taking into account the interest of the
children. Whenever deliberations are made regarding custody of children, the Courts give
paramount consideration to the interest of the children.It can be gauged by taking into account
the economic, cultural and social conditions that are prevailing.
ARGUMENTS ADVANCED
1. MAINTAINABILITY OF THE PETITION BEFORE FAMILY COURT AT MYSURU:
1.1.INDISPUTABLE INHABITANCE OF JURISDICTION OF INDIAN COURTS:
The existence of jurisdiction confers upon the Court, the authority to adjudicate any case
referred to it. Blacks Law Dictionary defines Jurisdiction as the power and authority
constitutionally conferred upon a Court or Judge to pronounce the sentence of the law. In a
wide catena of decisions, this Honble Court has upheld its jurisdiction by adjudicating disputes
involving people of different nationalities and citizenships. The concept of rendering justice
regarding issues of other citizens is not a new phenomenon. This Court has heard such cases
fromSatya v. Teja Singh1 to the presentRuchiMajoo v.SanjeevMajoo2. This Honble Court in
the landmark judgement of RuchiMajoo v.SanjeevMajoo3 has categorically held:-

1Satya v. Teja Singh (1975) 1 SCC 120.


2Ruchi Majoo v. Sanjeev Majoo(2011) 6 SCC 479.
3Ruchi Majoo v. Sanjeev Majoo(2011) 6 SCC 479.

MEMORIAL ON BEHALF OF THE APPELLANTS

13

A Court that has no jurisdiction to entertain a petition for custody cannot pass
any order or issue any direction for the return of the child to the country from
where he has been removed, no matter such removal is found to be in violation
of an order issued by a Court in that country. The party aggrieved of such
removal, may seek any other remedy legally open to it. But no redress to such a
party will be permissible before the Court who finds that it has no jurisdiction to
entertain the proceedings.
After referring to the 5 previous decisions viz., (i) Satya v. Teja Singh
(ii) Dhanwanti

Joshi

v.MadhavUnde (iii) Sarita

Sharma

v.

Sushil

Sharma (iv) V.Ravichandran v. Union of Indiaand (v) Shilpa Aggarwal v. Aviral


Mittal, ....the Court held that unless the Court in India before which a
proceeding is brought, had the jurisdiction to entertain it, it cannot even order
the return of the child to the country from where the child was removed.

1.1.1. MAINTAINABILITY OF DIVORCE PETITION:


The jurisdiction of the Hindu Code extends on the basis of religion solely. This can be inferred
by interpretation of S.2 of the HMA. On an extensive reading of the HMA, it can be inferred that
the application of the Act does not utilize territory or citizenship as a yardstick for limiting its
scope. Rather, it extends its jurisdiction solely on the grounds that the concerned parties fall
within the ambit of a Hindu as defined under the HMA.
In the case of Dhanwanti Joshi v.MadhavUnde4, the Honble Supreme Court upheld the
aforesaid principle.High Courts have also abided by this principle in the following instances.
In SondurRajini v.SondurGopal5,the Court held:-

4Dhanwanti Joshi v. MadhavUnde (1998)1 SCC 112.


5SondurRajini v. SondurGopal 2005 (4) Mah L.J. 688.

MEMORIAL ON BEHALF OF THE APPELLANTS

14

The marriage was solemnized by the Hindu Vedic rites and registered under
Hindu Marriage Act. It may be noticed that none of the provisions of Hindu
Marriage Act lay down the time and condition under which it will cease to
apply. In other words once the provisions of Hindu Marriage Act apply, it
would continue to apply as long as the marriage exists and even for dissolution
of the marriage.
In R.Sridharan v. The Presiding Officer6 the Madras High Court held:The Hindu Marriage Act does not stipulate any stringent condition that both
parties should be residing within or domiciled in the jurisdiction of India for
maintaining a petition under the Hindu Marriage Act. In fact it covers all
Hindus who are residing outside the territory to which this act extends.
S.2 of the HMA 1955, dealing with the application of the act, does not delimit its
scope based on the citizenship. S.2 read along the lines of S.19 does not mandate the
requirement of citizenship in order to file a petition in the Court for redressal of
issues born out of HMA.
Bearing in mind S.2 read with S.19(i) and S.19(iii-a), the divorce petition filed by
Saritha is maintainable before the Family Law Court at Mysuru.
1.1.2.MAINTAINABILITY OF THE INTERIM APPLICATION FOR THE CUSTODY OF
CHILDREN:
1.1.2.1. ORDINARY RESIDENCE PRINCIPLE:
S.2 of the HMGA provides that the provisions of the Act shall be in addition to, and not
derogatory of the provisions of the GWA, 1890. This provision, thus bestows the right of
applicability of the GWA, whilst interpreting the HMGA. Hence, S.9 of the GWA read in the
lights of S.2 of the HMGA, states that the jurisdiction for entertaining the application depends on
the ordinary residence.
S.9 of the GWA, 1890 formulatesa specific provision as regards to the jurisdiction of the Court to
entertain a claim for grant of custody of a minor.
"9. Court having jurisdiction to entertain application

6R.Sridharan v. The Presiding Officer (2010) 4 CTC 822.

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15

(1)If the application is with respect to the guardianship of the person of the
minor, it shall be made to the District Court having Jurisdiction in the place
where the minor ordinarily resides."
It is evident from a bare reading of the above that the solitary test for determining the jurisdiction
of the court under S.9 of the Act is the `ordinary residence' of the minor. The expression used is
"Where the minor ordinarily resides".
In KuldipNayar&Ors. v. Union of India &Ors7., the expression "ordinary residence" as used
in the RPA, 1950 fell for interpretation. This Court observed:
"Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689 to
denote that the word "ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much where the person is to be
found "ordinarily", in the sense of usually or habitually and with some degree
of continuity, but whether the quality of residence is "ordinary" and general,
rather than merely for some special or limited purpose.
In the case of RuchiMajoo v. SanjeevMajoo8, the Honble SC reaffirmed the
interpretation of the term ordinary resident as enunciated by the Honble HC in various
instances9. It was held the question whether one is ordinarily residing at a given place
depends so much on the intention to make that place ones ordinary abode.
The jurisdiction of the Court under the Guardians and wards Act, is
determined by the place where the minor ordinarily resides.
By admitting her children in a school in Mysuru, and attempting to inculcate in them, the
local language by way of tuitions for the past 7 months, she has expressed her intention of

7KuldipNayar&Ors v Union Of India &Ors (2006)7 SCC 1.


8RuchiMajoo v. SanjeevMajoo(2011) 6 SCC 479.
9Bhagyalakshmi&Anrv. K.N. Narayana Rao AIR 1983 Mad 9, Aparna Banerjee v. Tapan Banerjee AIR 1986 P&H
113.

MEMORIAL ON BEHALF OF THE APPELLANTS

16

residing in Mysuru.Thus, the petition before the District Court of Mysuru filed by the Petitioner
is maintainable as she is an ordinary resident of the place.
1.1.2.2. WELFARE OF THE CHILDREN IS OF PARAMOUNT CONSIDERATION:
In Elizabeth Dinshaw v. Arvand M. Dinshaw10 the SC, held:Whenever a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights of the
parties but on the sole and predominant criterion of what would best serve the
interest of the minor.
It is significant to note that in case of Surya Vadanan v. St of TN 11 where the SC transferred the
petition to UK substantiating that only UK Courts have jurisdiction to adjudicate the affairs; the
UK Court after discussion with the children concluded that its best for the interest of the children
to decide the case in India and now the petitioner stands before the Coimbatore District Court.
1.2.SUBMISSION TO THE JURISDICTION OF FOREIGN COURTS:
A person who appears in response to a summons of a foreign Court has been held to have
voluntarily submitted to the jurisdiction of that Court.12

2.ORDER OF FOREIGN COURT IS NOT ENFORCEABLE:


2.1.PRINCIPLE OF TERRITORIAL SOVEREIGNTY:
A judgment delivered in one country, in the absence of an international agreement, cannot have a
direct operation of its own in another. All individuals and all properties within a territory of a
state are within its dominion and sway-quidquidest in territorioesetiam de territorio. The
10Elizabeth Dinshaw v. Arvand M. Dinshaw (1987)1 SCC 42.
11 Surya Vadanan v. St of TN
12Shaligram v. Firm DaulatramKumdanmmal

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17

municipal Courts are under a constitutional compulsion to give effect to the law of their own
sovereign legislature.
2.2. DILUTION OF THE PRINCIPLE OFTERRITORIAL SOVERIGNTY:
The CPC has enunciated the concept regarding the enforceability of foreign judgements.
S.2 In this Act, unless there is anything repugnant in the subject or context,(6) "foreign judgment" means the judgment of a foreign Court;
S.13 of the CPC has enumerated a list of scenarios as to when a foreign judgement may not be
held conclusive.
S. 13: When foreign judgments are not conclusiveA foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom they
or any of them claim litigating under the same title except
a.

Where it has not been pronounced by a Court of competent jurisdiction

b. Where it has not been given the merits of the case


c.

Where it appears on the face of the proceedings to be founded on an

incorrect view of international law or a refusal to recognize the law of India in


cases in which such law is applicable.
d. Where the proceedings in which the judgment was obtained or opposed to
natural justice
e.

Where it has been obtained by fraud.

f.

Where it sustains a claim founded on a breach of any law in force in India.

2.2.1.ORDER NOT GIVEN ON THE MERITS OF THE CASE


The first ground on which the foreign judgment is assailed is that it was not given on the merits
of the case. This contention can be espoused by the fact that draft text of the judgment was
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18

accepted by the Foreign Court without any independent application of mind, merely because the
plaintiff remained exparte to the counter claim. Moreover, the plaintiff contends that there is no
discussion in the judgment, on the merits of the case and the evidence available on record. Even
a judgment rendered ex parte in India, is supposed to contain some discussion on the merits. But
there is no discussion even on the issue of interest and welfare of the child.Therefore, it is the
plaintiff's contention that the foreign judgment was not rendered on merits, making it vulnerable
for an attack under S.13(b) of CPC.
In Mohamed Kasim v. SeeniPakir Bin Ahmed 13, (referred to by the Supreme court in
International Woollen Mills14), a Full Bench of this Court held that a foreign judgment given on
default of appearance of the defendant, on the plaint allegation, without any trial or evidence, is
not a judgment given on the merits of the case within the meaning of S.13(b). But after
considering the said decision of the Full Bench, a Division Bench of this Court held in
Rajarathnam v. MuthuswamiKangani15, that though a foreign judgment might have been
passed ex parte, the decision must be deemed to be on merits, if it was passed on a consideration
of the evidence. A similar view was taken by another Division Bench inSivagaminatha Pillai v.
K.Nataraja Pillai16,that a decree of a foreign Court, even if passed ex parte, will be binding on
the parties thereto and will be conclusive under S.13, if it was passed on the evidence taken and
the decision was on consideration of the evidence. However in the instant case it is difficult to
conclude that the judgment was passed after consideration of facts and merits.
The Supreme Court approved the view of the Patna HC 17in International Woollen Mills
Case18to the effect the real test to find out whether it was on merits or not, is to see if it was
delivered as a matter of course or by way of penalty for the non-appearance of the defendant. No
13Mohamed Kasim v. SeeniPakir Bin Ahmed AIR 1927 Mad 265.
14M/S International woolen mills v. M/S Standard Wool ltd (2001) 5 SCC 265
15Rajarathnam vs. MuthuswamiKangani AIR 1958 Mad 203.
16Sivagaminatha Pillai vs. K.Nataraja Pillai AIR 1961 Mad 385.
17WazirSahu vs. Munshi Das AIR 1941 Pat 109.

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doubt, it was pointed out therein, that merely on the basis of the presumption under Illustration
(e) of S.114 of the Evidence Act, an ex parte decree cannot be presumed to be one on merits.
Though an ex parte decree may be a decree regularly passed, it may still not be a decree on
merits. A foreign judgment would be treated as one given on merits if some evidence had been
adduced on behalf of the plaintiff and if the foreign judgment, however brief, was based on a
consideration of that evidence. It is only in cases where no evidence was adduced on the side of
the plaintiff and yet the Court proceeded to decree the suit merely because of the absence of the
defendant, either by way of penalty or in a formal manner that the judgment cannot be
considered to be one on the merits of the case. Therefore, it is the plaintiff's contention that the
foreign judgment was not rendered on merits, making it vulnerable for an attack under S.13(b),
CPC.
2.2.1.1.INTIMATE PARTNER VIOLENCE:
The ACHR has constantly been the custodian of interests of the children and has efficiently
carried its role while deciding the custody of the Children. Intimate Partner Violence and child
abuse are recognized both as public health concerns and as violations of human rights.Men who
abuse female partners are also highly likely to abuse the children of these women. Family Courts
are reported to often ignore risks posed by abusive men in awarding child custody and visitation.
2.2.2.VIOLATION OF PNJ:
The next ground of attack is that the proceedings before the foreign court were opposed to
natural justice. The English Law followed a rigid test in construing violations of PNJ.But in
India a liberal view is taken. This plea has to be considered in the light of the statutory law of
India. In Y.Narasimha Rao v. Y.Venkata Lakshmi19, the Supreme Court held:
What is stated in S.13(d) is no more than an elementary principle on which any
civilized system of justice rests. But in matters concerning family law, the Court
held that this principle has to be extended to mean something more than mere
18M/S International woolen mills v. M/S Standard Wool ltd(2001) 5 SCC 265
19Y.Narasimha Rao vs. Y.Venkata Lakshmi(1991) 3 SCC 451.

MEMORIAL ON BEHALF OF THE APPELLANTS

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compliance with the technical rules of procedure. Explaining what would be


considered to be sufficient compliance with the principles of natural justice, the
Supreme Court laid down 2 tests. They are:
(i) It is necessary to ascertain whether the respondent was in a position to present
or represent himself/herself and contest effectively the proceedings; and
(ii) If the foreign Court has not ascertained and ensured such effective contest by
requiring the petitioner to make all necessary provisions for the respondent to
defend including the cost of travel, residence and litigation where necessary, it
should be held that the proceedings are in breach of the principles of natural
justice.
Therefore, in addition to the traditional requirements of (i) want of notice (ii) opportunity of
being heard and (iii) compliance with the prevailing notion of fair play (prescribed in
SankaranGovindan), let me also test the contention relating to natural justice, on the touchstone
of the principles evolved in Y.Narasimha Rao.
2.2.3.INTEREST OF CHILD IS OF PARAMOUNT CONSIDERATION:
The enforceability of foreign judgments is curtailed when they are against the peremptory norms.
The interest of children is considered as Jus Cogens in the sphere of International Law. In
multifarious Conventions founded by International Organisations, there is a substantiation ofthe
aforesaid principle. The DRC, ACHR, ICESCR, UNCRC 20,the Hague Convention,
1980reiterated that the childrens welfare is of paramount consideration. Paramount
consideration of welfare of children is also an indispensable factor that is taken into account
while dealing with custodial issues. The Honble SC has reaffirmed this in a plentitude of
instances.

20Article 12 and Article 13.

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21

This Court in Elizabeth Dinshaw v. Arvand M. Dinshaw 21, the general principles laid down in
McKee v. McKee22 was reiterated thus;
whenever a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights of the parties
but on the sole and predominant criterion of what would best serve the interest of
the minor.
This Honble Court in Poonam Datta v. Krishna Lal Datta23, held:
Parties are directed to consider the interest of the child as paramount and do
nothing which would be adverse to its interest or affect it physically or mentally
in any manner.
InSarita Sharma v. Sushil Sharma24, the SCwhile allowing the appeal, held:
it would not be proper to be guided entirely by .the order of the Court of
that country and that the decree passed by the American Court, though a
relevant factor, cannot override the considerations of welfare of the minor
children.
In RuchiMajoo v. SanjeevMajoo25, the SC upheld :Recognition of decrees and orders passed by foreign courts remains an eternal
dilemma in as much as whenever called upon to do so, Courts in this country
are bound to determine the validity of such decrees and orders keeping in view
the provisions of S.13 of the CPCWelfare of the minor in such cases being
the paramount consideration; the court has to approach the issue regarding the
21Elizabeth Dinshaw v. Arvind M. Dinshaw (1987) 1 SCC 42.
22McKee v. McKee 1951 1 All ER 942.
23Poonam Datta v. Krishna Lal Datta 1989 Supp(1) SCC 587
24Sarita Sharma vs. Sushil Sharma 2000 (3) SCC 14.
25RuchiMajoo v. SanjeevMajoo(2011) 6 SCC 479.

MEMORIAL ON BEHALF OF THE APPELLANTS

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validity and enforcement of a foreign decree or order carefully. Simply because


a foreign court has taken a particular view on any aspect concerning the
welfare of the minor is not enough for the courts in this country to shut out an
independent consideration of the matter.
In Kernot v. Kernot26 the Court held:
"So that even where a foreign court has made an order on the meritsthat
domestic court before whom the matter comes.is bound to consider what is in
the best interests of the infant; and although the order of the foreign court will
be attended to as one of the circumstances to be taken into account it is not
conclusive one way or the other."
This aforementioned principle was reiterated by the SC in Ravichandran v. UOI27.
2.3.EXCEPTION FOR COMITY OF COURTS:
The principle of the comity of Courts is essentially a principle of self-restraint, applicable
when a Foreign Court is seized of the issue of the custody of a child prior to the domestic court.
One of the earliest cases to come up before the SC on child custody disputes was in
Satyav. Teja Singh28. The Court pointed out in that case that Private International Law is not the
same in all countries and that there is no system of Private International Law which can claim
universal recognition. The Supreme Court observed that these principles vary greatly and are
moulded by the distinctive social, political and economic conditions prevailing in these
countries.
Speaking of the peculiar problems of conflict of laws arising in the United
States of America, due to the co-existence of 50 States, each with its own
autonomous legal system...under Article IV, Section 1 of the American
26Kernot v. Kernot 1965 Ch 217.
27Ravichandran v. UOI (2010) 1 SCC 174.
28Satya v Teja Singh AIR 1975 SC 105.

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Constitution, full faith and credit is required to be given in each State, to the
public Acts, Records and Judicial Proceedings in every other State..No
country is bound by comity to give effect in its Courts to the laws of another
country which are repugnant to its own laws and public policy.
In Dhanwanti Joshi v. MadhavUnde29 the SC reiterated, the decision in McKee
v. McKee30that the order of the foreign Court would yield to the welfare of the
child and that comity of Courts demanded not its enforcement, but its grave
consideration.
In Ruchi Majoo v. SanjeevMajoo31:
repatriation of the minor .. on the principle of `comity of courts' does not
appear to us to be an acceptable option worthy of being exercised at this
stage.Interest of the minor shall be better served if he continued in the
custody of his mother.

3. S.6(A) OF HMGA IS UNCONSTITUTIONAL:


3.1. INFRINGEMENT OF PART III OF THE CONSTITUTION:
The impugned provision is in violation of the Part III of the Constitution as it invidiously
discriminates between men and women. This impugned provision is in violation of Art.14 of the
constitution. In the present scenario where the Honble SC has legally recognized the transgender
as the third gender32; this provision explicitly violates the equality that the preamble aims to
achieve.
S.6(a) of the HMGA undoubtedly contradicts Art.14 and Art.15 of the Constitution. The same
29Dhanwanti Joshi vs. MadhavUnde 1998 (1) SCC 112.
30McKee vs. McKee 1951 1 All ER 942.
31Ruchi Majoo v. SanjeevMajoo(2011) 6 SCC 479.
32 National Legal services authority v. UOI (2014) 5 SCC 483.

MEMORIAL ON BEHALF OF THE APPELLANTS

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provision was challenged in the case of GithaHariharan&Anr v. Reserve Bank of India


&Anr.33 In this case Honble SC cited the incapacity of the father as the grounds for the mothers
capacity to act as a natural guardian and the SC held:
In all situations where the father is not in actual charge of the affairs of the
minor either because of his indifference or for any reason is unable to take
care of the minor because of his physical and/ or mental incapacity the mother
can act as natural guardian of the minor for the purposes of section 6(a) of
Hindu minority and guardianship act.
The impugned provision has discriminated the father from the mother by stating that the mother
shall gain capacity as a natural guardian only in the absence of the father.
The impugned provision should be deemed unconstitutional because of arbitrariness, as it does
not satisfy the conditions of reasonable classification. In Ajay Hasia&Ors v. Khalid
MujibSehravardi&Ors.34The SC held,
What article 14 strikes at is arbitrariness, because an action that is arbitrary
must necessarily involve negation of equality if the classification is not
reasonable and does not satisfy the two conditions referred to above, the
impugned legislative or executive action would plainly be arbitrary and the
guarantee of equality under article 14 would be breached.
Although a classification has been made in this act, there is no rational relation between
the differentia and the object of the impugned legislature, which is paramount
consideration of the minor. Held in In Re the Special Courts Bill 197835, and
reiterated in R.K. Garg v. Union of India &Ors36 .The SC clearly recognize that,

33GithaHariharan&Anr v. Reserve Bank of India &Anr (1999) 2 SCC 288.


34 Ajay Hasia&Ors v. Khalid MujibSehravardi&Ors. (1981) 1 SCC 722.
35Re The Special Courts Bill 1978; (1979) 1 SCC 380.
36 R.K. Garg v. Union of India &Ors (1981)4 SCC 675.

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The differentia which is the basis of the classification and the object of the act
are distinct things and what is necessary is that there must be a nexus between
them.
To challenge an arbitrary action under Article 14, the Petitioner does not have to show that there
is someone else similarly situated as he himself, or that he has been dissimilarly treated.
In A.L. Kalra37, the SC held that any action that is arbitrary must necessarily involve the
negation of equality.
One need not confine the denial of equality to a comparative evaluation
between two persons to arrive at a conclusion of discriminatory treatment. An
action per se arbitrary itself denies equal protection by law.
In explaining the equalizing principle as a founding faith which must not be subjected to
a narrow pedantic or lexographic approach and that no one should attempt to truncate its
scope and meaning, the Court held in E.P. Royappa v. State of Tamil Nadu &Anr.38
Equality is a dynamic concept with many aspects and dimensions and it
cannot be cribbed, cabined and confined within traditional and doctrinaire
limitsequality is antithetic to arbitrariness. In fact equality and arbitrariness
are sworn enemies... Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore
violative of article 14.
Additionally, in A.P. Aggarwal v. Govt. of NCT of Delhi &Anr.39, the Court held,
Every state action, in order to survive, must not be susceptible to the vice of
arbitrariness. This is the crux of article 14 and basic to the rule of law.

37 A.L. Kalrav.Project and Equipment Corp Ltd (1984) 3 SCC 316.


38 E.P. Royappa v. State of Tamil Nadu &Anr. (1974) 4 SCC 3.
39A.P. Aggarwal v. Govt. of NCT of Delhi &Anr. (2000)1 SCC 600.

MEMORIAL ON BEHALF OF THE APPELLANTS

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3.1.1. REMOVAL OF DISCRIMINATION AGAINST WOMEN IN MATTERS


RELATING

TO

GUARDIANSHIP AND

CUSTODY

OF

MINOR

AND

ELABORATION OF THE WELFARE PRINCIPLE40


The law relating to custody of children, the law according recognition to father (in
preference to the mother) as the natural guardian, and provisions which in effect treat
the women as a second class citizen call for close scrutiny. Is it fair to give preference to
the father as against the mother, is regarding the basic fact that it the mother who suffers
physical discomfort for nearly 9 months even before the birth of the child whereas the
father experiences no such discomfort there would appear to be no rational basis for
according statutory recognition to such invidious discrimination in the law of the land
the explanation to account for this anomaly is traceable to the traditional beliefs that a
female is an inferior being and the male is the superior being. Such a pro-male bias and
an anti-female prejudice should persisted even after assuring in the Constitution, is
somewhat unfortunate because the constitutional command etched in Article 15 frowns
upon such gender based discrimination.
3.2.VIOLATION OF THE BASIC STRUCTURE OF THE CONSTITUTION:
The broad emphasis of Rule of Law is on absence of any centre of unlimited or arbitrary power
in the country, on proper structurization and control of power, absence of arbitrariness in the
government. Rule of Law today envisages, not arbitrary power but controlled power. The SC of
India has invoked Rule of Law several times in its pronouncements to emphasize upon certain
constitutional values and principles.
The two great values which emanate from the concept of Rule of Law in modern times are:
1. No arbitrary government and
2. Upholding individual liberty.

40Law Commission of India- Report No.133 (August 1989)

MEMORIAL ON BEHALF OF THE APPELLANTS

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Emphasizing upon the above held values, Khanna.J observed in A.D.M.Jabalpur v. S.Shukla41
that
Rule of law is the antithesis of arbitrariness.Everywhere it is identified with
the liberty of the individual.
Further, the concept of basic structure which evolved from Rule of Law and was conceived by
the Honble SC in KesavanandaBharati v. State of Kerala42 has enshrined in it the concept of
equality and non-arbitrariness.
3.3.INSTANCES WHERE THE SC HAS STRUCK DOWN LAWS AS ENACTED
AGAINST GENDER EQUALITY:
The SC has always been the sentinel on the qui vive of the Constitution and has ensured gender
equality. It has actively propagated women rights by striking down the legislation that
discriminate women without any intelligible differentia. In multifarious instances this Honble
Court has ensured equality and rule of law from Air India v. NergeshMeerza43 until Municipal
Corporation of Delhi v. Female Workers &Anr 44. In Air India v. NergeshMeerza 45, this
Court was faced with the constitutional validity of Regulation 46(i)(c) of Air India Employees'
Service Regulations; , the SC struck down the provision of rules which stipulated termination of
service of an air hostess on her first pregnancy as it arbitrary and abhorrent to the notions of a
civilized society.

41A.D.M.Jabalpur v. S.Shukla (1976) 5 SCC 521.


42Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
43Air India v. NergeshMeerza (1981) 4 SCC 335.
44Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr. (2000) 3 SCC 224.
45Air India v. NergeshMeerza (1981) 4 SCC 335.

MEMORIAL ON BEHALF OF THE APPELLANTS

28

In Randhir Singh v. UOI &Ors.46,this Court held that non-observance of the principle of 'equal
pay for equal work' for both men and women under Art.39(d) of the Constitution amounted to
violation of Article 14 and 16.
In MadhuKishwar&Ors. V. State of Bihar &Ors.47, the provisions in Chotanagpur Tenancy
Act, 1908 providing succession to property in the male line was struck down.
In Vishaka& Ors. v. State of Rajasthan &Ors.48, the SC held that sexual harassment of
working women at her place of an employment amounts to violation of rights of gender equality
and right to life and liberty which is clear violation of Articles 14, 15 and 21 .
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr.49andAnujGarg
v. Hotels Association of India50this Honble Court has guaranteed gender equality.
A functioning modern democratic society should ensure freedom without discriminating on the
basis of sex, race, caste or any other like basis. ROMANTIC PATERNALISM must end by
application of ANTI STEREOTYPICAL PRINCIPLE.
3.4.INTERNATIONAL OBLIGATIONS TO ENSURE EQUALITY
With regard to International treaties and conventions, the UOI has an obligation arising from Art
and 51 and Art 253 of our Constitution to pay heed, implement and bring into force any
International treaties or conventions that have been ratified. India being a signatory to the
Convention on the Elimination of all forms of Discrimination Against Women and the
International Covenant on Civil and Political Rights has an obligation to obey its Articles and
rules.
46Randhir Singh v. Union of India &Ors. (1982) 1 SCC 618.
47MadhuKishwar&Ors. v. State of Bihar &Ors.(1996) 5 SCC 125.
48Vishaka&Ors. v. State of Rajasthan &Ors. (1997) 6 SCC 241.
49In Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr(2000) 3 SCC 224.
50AnujGarg v. Hotels Association of India (2008) 3 SCC 1.

MEMORIAL ON BEHALF OF THE APPELLANTS

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In concurrence with the current issue, Art 15 reads:


Girls and women and boys and men are equal before the law, including laws about freedom
to go where they choose, choosing where to live, signing contracts and buying and selling
properties. Women have the same legal capacity as men.
In the present case, the impugned legislation does not confer on women the same legal
capacity as men, as it ensures the capacity of women to act as the natural guardian to a minor
only contingent to the fathers incapacity, and as such is in violation of Art15 of CEDAW.
Furthermore, Art 26 of ICCPR reads:
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as
race, .colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
It is clear from the above articles that any form of discrimination against women is outlawed and
India has an obligation to act in conformity with these rules.

4.CUSTODY OF THE CHILDREN SHOULD BE GIVEN TO THE MOTHER AS IT IS IN


THE BEST INTEREST OF THE CHILDREN:
With regard to custodial issues, it is essential to give utmost importance to the best interest of the
minor children in question. In this regard, in the case of Sarita Sharma v. Sushil Sharma51, a
case with like facts, this Court was seized with a matter where the mother had removed the
children from U.S.A. despite the order of the American Court. It was held
"It will not be proper to be guided entirely by the fact that the appellant
Sarita had removed the children from U.S.A. despite the order of the Court
of that country... The decree passed by the American Court though a
51Sarita Sharma v. SushilSharma2000 (3) SCC 14.

MEMORIAL ON BEHALF OF THE APPELLANTS

30

relevant factor, cannot override the consideration of welfare of the minor


children... Ordinarily, a female child should be allowed to remain with the
mother so that she can be properly looked after. It is also not desirable that
two children are separated from each other. If a female child has to stay
with the mother, it will be in the interest of both the children that they both
stay with the mother...
Additionally, the Honble Court also cited the fathers habit of taking excessive alcohol as a
deterrent factor to the interest of the minor children. In the language of the Court:
The respondent appears to be in the habit of taking excessive alcohol.
Though it is true that both the children have American citizenship and there
is a possibility that in U.S.A they may be able to get better education, it is
doubtful if the respondent will be in a position to take proper care of the
children when they are so young.
Similarly, in the present case, the respondent father is an alcoholic, and his conduct and care
cannot be deemed as proper and adequate to take proper care of the children.

MEMORIAL ON BEHALF OF THE APPELLANTS

31

PRAYER

For the reasons aforesaid, in the light of issues raised, arguments advanced and authorities cited,
it is humbly submitted before this Honble Court that it may be pleased to

Direct the parties to redress the issue in the Family Court at Mysuru.
Repress the order of the US Court.
Declare S.6(a) of Hindu Minorities and Guardianship Act, 1965 as unconstitutional.
Pass interim custody order in favour of Saritha.

And pass such orders proper in the circumstances of the case with costs, which this Court may
deem fit, in the light of equity, justice and good conscience for which the counsel may forever
pray.

MEMORIAL ON BEHALF OF THE APPELLANTS

32