Professional Documents
Culture Documents
ANMCC2016 Petitioner
ANMCC2016 Petitioner
V.
SUBJECT PAGE
NO
LIST OF ABBREVIATIONS 3, 4
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED 5
B. LIST OF STATUTES REFERRED 5
C. LIST OF JOURNALS REFERRED 6
D. LIST OF WEBSITES REFERRED 6
E. LIST OF REPORTS REFERRED 6
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
HON’BLE - 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
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
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.
STATEMENT OF ISSUES
SUMMARY OF ISSUES:
1. It is humbly submitted that the petitioner’s 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 Code’s enforceability solely depends upon the
religion not territory.
2. It is humbly submitted that the USA Court’s 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.
3. 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.
4. 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
The existence of jurisdiction confers upon the Court, the authority to adjudicate any case
referred to it. Black’s Law Dictionary defines ‘Jurisdiction’ as “the power and authority
“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.”
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.
1
Satya v. Teja Singh (1975) 1 SCC 120.
2
Ruchi Majoo v. Sanjeev Majoo(2011) 6 SCC 479.
3
Ruchi Majoo v. Sanjeev Majoo(2011) 6 SCC 479.
4
Dhanwanti Joshi v. MadhavUnde (1998)1 SCC 112.
5
SondurRajini v. SondurGopal 2005 (4) Mah L.J. 688.
6
R.Sridharan v. The Presiding Officer (2010) 4 CTC 822.
(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 &Ors 7., the expression "ordinary residence" as used
in the RPA, 1950 fell for interpretation. This Court observed:
“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
7
KuldipNayar&Ors v Union Of India &Ors (2006)7 SCC 1.
8
RuchiMajoo v. SanjeevMajoo(2011) 6 SCC 479.
9
Bhagyalakshmi&Anrv. K.N. Narayana Rao AIR 1983 Mad 9, Aparna Banerjee v. Tapan Banerjee AIR 1986 P&H
113.
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
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
municipal Courts are under a constitutional compulsion to give effect to the law of their own
sovereign legislature.
10
Elizabeth Dinshaw v. Arvand M. Dinshaw (1987)1 SCC 42.
11
Surya Vadanan v. St of TN
12
Shaligram v. Firm DaulatramKumdanmmal
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,-
S.13 of the CPC has enumerated a list of scenarios as to when a foreign judgement may not be
held conclusive.
b. Where it has not been given 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
accepted by the Foreign Court without any independent application of mind, merely because the
In Mohamed Kasim v. SeeniPakir Bin Ahmed13, (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
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
13
Mohamed Kasim v. SeeniPakir Bin Ahmed AIR 1927 Mad 265.
14
M/S International woolen mills v. M/S Standard Wool ltd (2001) 5 SCC 265
15
Rajarathnam vs. MuthuswamiKangani AIR 1958 Mad 203.
16
Sivagaminatha Pillai vs. K.Nataraja Pillai AIR 1961 Mad 385.
17
WazirSahu vs. Munshi Das AIR 1941 Pat 109.
18
M/S International woolen mills v. M/S Standard Wool ltd(2001) 5 SCC 265
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:
19
Y.Narasimha Rao vs. Y.Venkata Lakshmi(1991) 3 SCC 451.
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.
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, UNCRC20,the Hague Convention,
1980reiterated that the children’s 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 Hon’ble SC has reaffirmed this in a plentitude of
instances.
This Court in Elizabeth Dinshaw v. Arvand M. Dinshaw 21, the general principles laid down in
McKee v. McKee22 was reiterated thus;
20
Article 12 and Article 13.
21
Elizabeth Dinshaw v. Arvind M. Dinshaw (1987) 1 SCC 42.
22
McKee v. McKee 1951 1 All ER 942.
23
Poonam Datta v. Krishna Lal Datta 1989 Supp(1) SCC 587
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.
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 Hon’ble 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
provision was challenged in the case of GithaHariharan&Anr v. Reserve Bank of India
&Anr.33 In this case Hon’ble SC cited the incapacity of the father as the grounds for the
mother’s 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,
32
National Legal services authority v. UOI (2014) 5 SCC 483.
33
GithaHariharan&Anr v. Reserve Bank of India &Anr (1999) 2 SCC 288.
34
Ajay Hasia&Ors v. Khalid MujibSehravardi&Ors. (1981) 1 SCC 722.
“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.
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
Additionally, in A.P. Aggarwal v. Govt. of NCT of Delhi &Anr.39, the Court held,
35
Re The Special Courts Bill 1978; (1979) 1 SCC 380.
36
R.K. Garg v. Union of India &Ors (1981)4 SCC 675.
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.
39
A.P. Aggarwal v. Govt. of NCT of Delhi &Anr. (2000)1 SCC 600.
“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.
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:
40
Law Commission of India- Report No.133 (August 1989)
Further, the concept of “basic structure” which evolved from Rule of Law and was conceived by
the Hon’ble SC in KesavanandaBharati v. State of Kerala42 has enshrined in it the concept of
equality and non-arbitrariness.
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 Hon’ble
Court has ensured equality and rule of law from Air India v. NergeshMeerza 43 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.
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.
41
A.D.M.Jabalpur v. S.Shukla (1976) 5 SCC 521.
42
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
43
Air India v. NergeshMeerza (1981) 4 SCC 335.
44
Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr. (2000) 3 SCC 224.
45
Air India v. NergeshMeerza (1981) 4 SCC 335.
46
Randhir Singh v. Union of India &Ors. (1982) 1 SCC 618.
47
MadhuKishwar&Ors. v. State of Bihar &Ors.(1996) 5 SCC 125.
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.
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.
“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 father’s incapacity, and as such is in violation of Art15 of CEDAW.
48
Vishaka&Ors. v. State of Rajasthan &Ors. (1997) 6 SCC 241.
49
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr(2000) 3 SCC 224.
50
AnujGarg v. Hotels Association of India (2008) 3 SCC 1.
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.
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 Sharma 51, 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
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 Hon’ble Court also cited the father’s 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
51
Sarita Sharma v. SushilSharma2000 (3) SCC 14.
PRAYER
For the reasons aforesaid, in the light of issues raised, arguments advanced and authorities cited,
it is humbly submitted before this Hon’ble 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.