NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

NEF LAW COLLEGE INTRA MOOT COMPETION, 2016

ANIL VS RASHMI
IN THE HONBLE GAUHATI HIGH COURT
SECTION 19 (1), FAMILY COURTS ACT,1984

APPEAL NO../2016

ANIL.APPELLANT
VS
RASHMI..RESPONTENDENT

NEF LAW COLLEGE INTRA MOOT COMPETITION, 2016

TEAM CODE -05

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

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

LIST OF ABBREVIATIONS
LIST OF AUTHORITIES
STATEMENT OF JURISDICTION
ISSUES RAISED
STATEMENT OF FACTS
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

LIST OF ABBREVIATIONS
AIR...............................................................................................................All India Reporter
SC.......................................................................................................................Supreme Court
CPC................................................................................................The Code of Civil Procedure
PAS..............................................................................................Parental Alienation Syndrome
SEC/Sec...........................................................................................................................Section
HP..................................................................................................................Haryana & Punjab
All................................................................................................................................Allahabad
LIST OF AUTHORITIES
I.

II.

III.

LIST OF STATUTES :
The Hindu Marriage Act, 1955
The Hindu Minority and Guardianship Act,1956
The Guardian and Wards Act, 1890
The Family Courts Act,1984
LIST OF INTERNET SITES
www.wikipedia.org.
www.indiankanoon.org
www.terminatorak.wordpress.com
www.fact.on.ca
LIST OF BOOKS REFERENCED
Hindu Law : Principles and Precedents N.R. Raghavachariar

STATEMENT OF JURISDICTION
The Honble High Court of Gauhati has the jurisdiction to hear an appeal under section 19(1) of
The Family Courts Act, 1984 on the order passed by the Udalguri Family Court (Trial Court).

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

STATEMENT OF FACTS :
The Respondent, Rashmi had married Anil, the Appellant on 31-01-2004 as per as Hindu Religious Rites
and Customs. The Respondent has a minor son of 11 years, named Rahul with the Appellant born out of
the marriage. Rahul, the minor child is an academically exceptional boy and is very much loved by the
Respondent. At the time of the marriage of the respondent with the appellant, the appellant was a business
man in Germany. After around 3 months of the marriage, the Respondent was forced to leave her
matrimonial home and live separately from the appellant because of a misunderstanding between them.
After that the Respondent and the Appellant has been living separately for years. The minor child, Rahul
however during this time had lived with the respondent from the date of the separation. In the meantime,
the appellant used to visit his minor child and her, and the respondent never stopped the appellant from
visiting his child keeping in mind the welfare of the child.
However, during these visits the appellant used to accuse her of having illegal intimacy with another
person. The respondent, being the wife of the appellant, was unable to bear such unfounded and cruel
accusations from her husband and when the appellants cruelty and harassment crossed extreme extent,
she was compelled to pile a petition for divorce on the grounds of cruelty to the Udalguri Family Court.
The Learned Principal Judge of the Udalguri Family Court passed an ex-parte decree of divorce in the
favour of the Respondent and the Appellants petition for Restitution for Conjugal Rights was dismissed
for default by the court. Also the Learned Principal Judge of the Udalguri Family Court after thoroughly
considered the oral evidence and the documentary evidence provided by both the parties. The Court also
interviewed the minor child, Rahul and came to the conclusion that the childs welfare was vested with
his mother and awarded the respondent the custody of the minor child, keeping in view the welfare of the
child.
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

The minor child, Rahul is now 11 yrs old and living with the Respondent and her new husband.

ISSUES RAISED:
1. Whether the Appellant Mr. Anil has 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 Rights 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 (accusations of unchastity) actually amounted to cruelty
towards his wife?

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

SUMMARY OF ARGUMENTS
ISSUE 1. WHETHER THE APPELLANT MR. ANIL HAS LOCUS STANDI TO FILE AN
APPEAL IN THE HIGH COURT?
No, The Appellant Mr. Anil does not have locus standi to file an appeal in the High Court of
Gauhati as evidenced by the Section 19 (3) of the Family Courts Act, 1984
ISSUE 2. WILL REMARRIAGE OF THE RESPONDENT AMOUNTS TO
TERMINATION OF GUARDIANSHIP?
Yes, Remarriage of the Respondent does not amounts to termination of guardianship as it is not
a criterion for termination of guardian ship
ISSUE 3. WHETHER THE DECISION OF THE SUBORDINATE COURT OF
DISMISSING THE PETITION FOR RESTITUTION OF CONJUGAL RIGHTS WAS
JUSTIFIED
No, it was justified because the appellant was absent in the court and the decree of divorce was
passed ex-parte
ISSUE 4. WHETHER THE CUSTODY OF THE CHILD TO HIS MOTHER WILL BE
DETRIMENTAL TO HIS PHYSICAL AND MENTAL WELFARE? AND WHETHER
FINCIAL CINDITION OF THWE MOTHER SHALL BE TAKEN INTO
CONSIDERATION WHILE GIVING AWAY THE CUSTODY OF THE CHILD?
Yes, the custody of the child to the respondent will not be detrimental to his physical and mental
welfare as the paramount consideration is the welfare of the child. The financial condition of the
respondent should not be taken into account as the welfare of the child is the paramount
consideration
ISSUE 5 WHETHER THE ACT OF THE HUSBAND

(ACCUSATIONS

OF

UNCHASTITY) ACTUALLY AMOUNTED TO CRUELTY TOWARDS HIS WIFE?

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

Yes, the act of the husband amounts to cruelty towards his wife because mental agony is a form
of cruelty.

ARGUMENT ADVANCED
ISSUE 1:ISSUE 1:-WHETHER THE APPELLANT MR.ANIL HAS THE LOCUS STANDI TO
FILE AN APPEAL IN HIGH COURT?
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

Mr.Anil the appellant does not have the locus standi to file an appeal in the High Court under
Section 19(3) of the Family Court Act 1984 because an appeal made against any order or
judgement of a Family Court, in a High Court is preferred within thirty days of the judgement.
The appellant, Mr Anil has no locus standi to file an appeal in the High Court of Gauhati as he
did not file within that period; as evidenced from the fact that at the time of first original petition
of custody the minor child 10 yrs old and at the time of the appeal petition he is 11yrs old.
Thereby, the appellant has no locus standi to file an appeal in the High Court of Gauhati and the
appeal petition should be dismissed.
Reproducing Section 19(3) OF The Family Court Act 1984:Section 19:- Appeal - (3)- Every appeal shall be preferred within the period of thirty days from
the date of the judgment or order of The Family court.

ISSUE 2
2. WILL REMARRIAGE OF THE RESPONDENT AMOUNTS TO TERMINATION OF
GUARDIANSHIP?
No, Remarriage of the Respondent does not amount to termination of guardianship as remarriage
does not qualify as criteria for termination of guardianship. Remarriage is not a criterion for
termination of guardianship as the paramount consideration is the welfare of the child.
In the Case law LEKHA VS P.ANIL KUMAR1, the SC held that the remarriage of the mother
cannot be taken as ground for not granting the custody of the child to the mother. The paramount
1 Appeal (Civil) 5131 of 2006, SC
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

consideration should be given to the welfare of the child. A divorced woman is entitled to the
custody of the minor child even after remarriage, notwithstanding the fact that the father is the
natural guardian under Hindu Law, the SC has held in this case.

ISSUE 3
3. WHETHER THE DECISION OF THE SUBORDINATE COURT OF DISMISSING
THE PETITION FOR RESTITUTION OF CONJUGAL RIGHTS WAS JUSTIFIED?
3.1.Yes ,the decision of the subordinate court would be justified for dismissing the petition for
the Restitution of Conjugal Rights, because the appellant, Anil did not appear for the hearing in
the court and thats why the Udalguri Family Court has passed ex- parte decree against the
defendant under Order IX Rule 6(1) (a) , where the respondent appears and the appellant does
not appear when the suit is called on for hearing then if it is proved that the summon was duly
served , the court may proceed ex parte to take and determine on evidence and pass an decree in
the favour of the respondent
Reproducing Order IX Rule 6(1) (A) of the Civil procedure Code:-

6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant
does not appear when the suit Is called on for hearing, then
(a) When summons duly servedlf it Is proved that the summons was duly served, the court
may make an Order that the suit be heard ex parte;
3.2 The dismissal of the petition of the appellant for he Restitution of Conjugal Rights was
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

justified because no one can take advantage of ones one wrong. A petition for Restitution of
Conjugal Rights hand and accusations of adultery cannot go hand in hand.
In the case law KULDEEP KUMAR DOGRA VS MONIKA2 the court held that husband is
not entitled to restitution where he had treated the wife cruelly
ISSUE 4
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?
No, because according to Section 13(1) of The Hindu Minority and Guardianship Act, 1956
whichof the provides that welfare of the child be paramount consideration and Sections 17
(3) and 17 (5) of The Guardian and Wards Act, 1890 which provides for the wishes of the
minor, the custody of minor should remain with the mother for the minors continued welfare
3.1 The custody of the minor should remain with his mother because as evidenced the minor
from his very birth has lived with the respondent and removing him from the familiar
surroundings would hamper his mental state. The custody of the child to his mother will not
be detrimental to his welfare as evidenced by the fact that he is an academically exceptional
boy and hence the mother is providing him with good care and when interviewed by the
Udalguri Family Court, the court based on his interview gave the custody of the minor child t
his mother and giving the appellant the custody will harm the minor.
Reproducing Section13 (1) of The HiNDU MINORITY AND GUARDIANSHIP ACT :Section 13 -Welfare of minor to be paramount consideration.
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court,
2 2010 HP 58
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

the welfare of the minor shall be the paramount consideration.

Reproducing of the Section 17(3) and17(5) of the Gurdianship and Wards Act,1956:Section 17(3) -If minor is old enough to form an intelligent preference; the Court may
consider that preference. 1[***]
Section 17(5) The Court shall not appoint or declare any person to be a guardian against his
will.
3.2 The respondent has been for the last 11yrs been providing the necessities of the minor
child and provided a good education for him as evidenced from the fact that he is
academically exceptional. The appellant better financial position cannot be the only criterion
to grant him the custody of the minor child.

ISSUE 5

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

5.WHETHER THE ACT OF THE HUSBAND (ACCUSATIONS OF UNCHASTITY)

ACTUALLY AMOUNTED TO CRUELTY TOWARDS HIS WIFE?
Yes, the act of the husband, the appellant accusing the respondent of unchastity amounts to
cruelty towards his wife. Mental cruelty as a ground for divorce is provided by Section 13 (i-a)
of The Hindu Marriage Act, 1955. It also implies that normal wear and tear of marriage is not
cruelty; the conduct must be weighty and grave enough to cause a lot mental agony. The
appellant has falsely alleged the respondent of unchastity in oral, person, in petition and in court.
No wife can bear to hear such accusation from her husband and would suffer huge mental agony
and also such accusations would inevitably break down the marriage.
In the case law KUSUMLATA VS KAMTA PRASAD3 false accusations of unchastity and
adultery in lawyers notice and in pleadings was held to amount to cruelty.

PRAYER
In the light of the issues raised, arguments advanced, cases citied in front of Honble High Court
of Gauhati, the respondent requests this Honourable Court
1. Dismiss the appeal petition filed by the appellant
For which the Counsels on behalf of the Respondent will forever be duty bound and grateful

3 1965 All 280

MEMORIAL ON BEHALF OF THE APPELLANT