1

TEAM CODE- 13

PRESENTED BEFORE THE HON’BLE

GAUHATI HIGH COURT

INTRA MOOT COURT

NEF LAW COLLEGE

MR. ANIL (APPELLANT)

VS.
MRS. RASHMI (RESPONDANT)

MEMORIAL FOR RESPONDENT

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TABLE OF CONTENTS

SERIAL NUMBER TOPIC PAGE NUMBER

1. Index of Authorities 3
2. Statement of Jurisdiction 4
3. Statement of Facts 4
4. Issues Raised 5
5. Summary of Arguments 6-8
6. Written Arguments 9-15
7. Prayer 16

INDEX OF AUTHORITIES

REFERRED BOOKS:

1. Commentary on Hindu Law by R.K. Agarwala.

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2. The Code of Civil Procedure by C.K Takwani.

3. Modern Hindu Law by Paras Diwan.

4. The Constitutional law Of India by J.N. Pandey.

REFFERED CASES:

1) Lekha v. P. Anil Kumar Appeal (civil) 5131 of 2006

2) Ram Prasad v. District judge, Gorakhpur', AIR 1920 All 89

3) Kumar V. Jahangirdar vs. Chethna K. Ramateertha, Special leave petition (civil) 4230

– 4231 of 2003

4) Saptmi v. Jagdish, (1970) Cal 272

5) Sheela vs. Jeevanlal 1988 AP 275

6) V. Bhagat vs. D Bhagat (1994) 1 FCC 337

7) Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276

8) 'Mt. Mansa Devi v. Makhar', AIR 1936 Pesh 207

9) 'In re Mcgrath (Infants)', (1893) 1 Ch 143

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STATEMENT OF JURISDICTION

The respondent humbly submits this memorandum to the Hon’ble High Court under section

19(1) of Family Courts Act, 1984.

STATEMENT OF FACTS

The marriage between the appellant and the respondent was solemnized on 31-01-2004 as per

the Hindu Religious Rites and Customs. A son Rahul was born and is 11 years old now. He is

also academically exceptional. At the time of marriage, the Respondent was a Business Man

in Germany. After marriage, the Appellant and the Respondent lived together for 3 months

and thereafter lived separately and the appellant went back to Germany because of the

misunderstandings between them. Only during business trips to India, he visited his son who

lived with the mother in her flat, which was gifted to her by her parents as Stridhan. With

every visit of the husband, the misunderstandings between the spouses became aggravated

and he started questioning the character and morality of the wife. The wife always tried her

level best to save their marriage. In the recent 10 days trip of Mr. Anil, he stayed with his

wife in her place. During the stay, the harassment and cruelty of the appellant crossed the

extreme extent for which the respondent was compelled to file a petition for divorce on the

ground of cruelty. The husband filed an original petition under the Guardians and Wards

Act,1890 for the custody of 10 years old son and also a petition for Restitution of Conjugal

Rights. The Principal Judge of Udalguri Family Court passed an ex- parte decree of divorce

in favour of the wife and the petition for Restitution of Conjugal Rights filed by the Appellant

was dismissed for default. After considering the oral evidence adduced by the parties and

examining the documentary evidence and also interviewing the child, the Trial Court came to

the conclusion keeping in view that welfare of the child, the custody should be given to the

mother and dismissed the original petition of the father filed under the Guardians and Wards

Act. The husband filed an appeal before the High Court against the order of the Trial Court.
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ISSUES RAISED

1. Whether the Appellant Mr. Anil has the 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 right 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 (accusation of unchastity) actually amounted to cruelty

towards his wife?

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SUMMARY OF ARGUMENTS

It is Humbly submitted that,

1. Whether the appellant Mr. Anil has the locus standi to file an appeal in the High

Court?

No, the appellant Mr. Anil does not have the locus standi to file an appeal in the High Court.

Section 96 of Civil Procedure Code, 1908 states the 2 conditions required to appeal in the

High Court, of which the appellant does not fulfill the second condition, i.e., the party

appealing must be adversely affected by the decree passed.

In our case, custody of the child was never with the father in the first place hence the decree

passed by the Trial Court of granting custody of the child to the mother has not adversely

affected the appellant.

2. Will remarriage of the respondent amount to termination of guardianship?

Remarriage of the respondent will not amount to termination of guardianship.

Section 13 of the Hindu Minority And Guardianship Act, 1956 provides for- Welfare of

minor to be paramount consideration.-

Section 17 of Guardians And Wards Act, 1890 states that, “Matter to be considered by the

Court in appointing guardian.”.

The learned judges in previous judicial decision1 held that, the remarriage of the mother

cannot be taken as a ground for not granting the custody of the child to the mother. The

paramount consideration should be given to the welfare of the child.

1
Lekha vs P. Anil Kumar on 21 November Appeal (civil) 5131 of 2006
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Hence in the present case, the respondent, Mrs. Rashmi’s remarriage does not amount to

termination of guardianship.

3. Whether the decision of the subordinate court of dismissing the petition for

restitution of conjugal rights justified?

The decision of the subordinate court of dismissing the petition for restitution of conjugal

rights is very much justified.

Section 9 of Hindu Marriage Act, 1955 provides for Restitution Of Conjugal Rights.

But here, there is no question for decree of restitution of conjugal rights, because a decree of

divorce has already been passed by the Honourable Family Court. A divorce means

permanent termination of marriage and the parties no longer retain the status of husband and

wife, hence the rights and obligations of the spouses are terminated and they become free to

remarry.

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?

(A) The custody of the child to his mother will not be detrimental to his physical and

mental welfare.

Section 17 of Guardians and Wards Act, 1890 provides- Matter to be considered by the

Court in appointing guardian.

Section 13 of Hindu Minority and Guardianship Act, 1956 states Welfare of minor to be

paramount consideration.
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In our case, Rahul (minor son), being highly talented and capable enough to make wise

preferences, expressed his willingness to stay with his mother. This has already been proved

by the Trial Court earlier in granting the custody to Mrs. Rashmi (mother).

(B) No, the financial condition of the mother shall not be taken into consideration while

giving away the custody of the child. It has been held by the Allahabad HC 2 that the word

“welfare” does not only mean material but moral welfare as well and in our case, giving

the custody to the father will deprive the child from his moral welfare as the father being

a businessman and having to go on business trips will not be able to devote quality time

to his son.

5. Whether the act of husband (accused of unchastity) actually amount to cruelty?

Yes, the act of husband (accused of unchastity) actually amounts to cruelty.

In previous judicial decisions3, held that if a spouse is subjected to false accusations of

adultery or false charges of immorality, it would make married life impossible to be endured

and would make a very unhappy and miserable existence. This type of cruelty is worse than

the acts of physical cruelty.

In our case, the appellant raised allegations that my client Mrs. Rashmi is indulged in illegal

intimacy with another man, it made married life impossible to be endured between the

spouses also the harassment and cruelty crossed the extreme extent. Hence the respondent

filed a petition for divorce on the ground of cruelty.

2
Ram Prasad v. District judge, Gorakhpur', AIR 1920 All 89
3
Saptmi v. Jagdish (1970) Cal 272
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WRITTEN ARGUMENTS

It is Humbly submitted that,

1. Whether the appellant Mr. Anil has the locus standi to file an appeal in the High

Court?

No, the appellant Mr. Anil does not have the locus standi to file an appeal in the High Court.

Section 96 of Civil Procedure Code, 1908 states the 2 conditions are required to appeal in the

HC, of which the appellant does not fulfill the second condition, i.e., the party appealing must

be adversely affected by the decree passed.

In the instant case, it was not like he was enjoying the custody of the child for all these years.

In fact, he never had the custody of the child in the first place. Till date the child has been

taken care and looked after only by his mother. In the case of Kumar V. Jahangirdar vs.

Chethna K. Ramateertha4, it was held that while awarding custody of child to anyone, the

only touchstone is interest and welfare of the child and nothing else. Convenience and

pleasure of the parents is totally immaterial. Therefore the facts of our case reveal that only

on the account of displeasure and no legal right being violated of the husband, the decision of

the Honorable Family Court of giving the custody of the child to mother and dismissing the

petition of the father did not harm him in any possible way.

2. Will remarriage of the respondent amount to termination of guardianship?

Let us take you back to 2006, in a landmark judgment given by SC in the case of Lekha vs. P.

Anil Kumar5 where it was clearly held that, the remarriage of the mother cannot be taken as a

ground for not granting the custody of the child to the mother. The paramount consideration
4
Special leave petition (civil) 4230 – 4231 of 2003
5
Appeal (civil) 5131 of 2006
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should be given to the welfare of the child. The law permits a person to have the custody of

his minor child. The father ought to be the guardian of the person and property of the minor

under ordinary circumstances. The fact that the mother has married again after the divorce of

her first husband is no ground for depriving the mother of her parental right of custody and

also the court forms the impression that the mother is a normal and independent young

woman and shows no indication of imbalance of mind in her, then in the end the custody of

the minor child should not be refused to her or else we would be really assenting to the

proposition that a second marriage involving a mother per se will operate adversely to a claim

of a mother for the custody of her minor child.

Also the learned judges in previous judicial decision of Sheela vs. Jeevanlal6, held that a

mother cannot be deprived of custody, just because she has remarried.

In the instant case, the question raised was on remarriage of the respondent mother. But only

because of the fact that she remarried, will not act as a ground for termination of her

guardianship. As the fact reveals that, after examining the documentary evidence and also

interviewing the child who is preferring to live with his mother, are enough for us to conclude

that proper welfare can only be attained if the boy is allowed to stay in the custody of the

respondent.

3. Whether the decision of the subordinate court of dismissing the petition for

restitution of conjugal rights justified?

The decision of the subordinate court of dismissing the petition for restitution of conjugal

rights is very much justified.

Section 9 of Hindu Marriage Act, 1955 provides for Restitution Of Conjugal Rights.

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1988 AP 275
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But here, there is no question for decree of restitution of conjugal rights, because a decree of

divorce has already been passed by the Honourable Family Court. A divorce means

permanent termination of marriage and the parties no longer retain the status of husband and

wife, hence the rights and obligations of the spouses are terminated and they become free to

remarry.

Here in the instant case, the marriage of Mrs. Rashmi (respondent) and Mr. Anil (appellant)

was solemnized on 31st January, 2004 as per the Hindu religious rites and customs. After

marriage, the Appellant and the respondent lived together for 3 months and thereafter lived

separately because of the misunderstanding between them. Therefore, the appellant went

back to Germany to resume his business. Later out of the said wedlock a son, namely Rahul

was born who is 11 years old now with exceptional academic record. Whenever the husband

had business trips to India, which normally were not more than 2-3 days, he always visited

his son who lived with the mother in her flat, which was gifted to her by her parents as

Stridhan.

But I am sorry to say, with every visit of the husband, the misunderstandings between the

spouses became aggravated and he started questioning the character and morality of the wife.

In fact, it was my client who was trying her level best to save their marriage and being a

Hindu, she always had regarded marriage to be a sacred institution. But all her efforts went in

vain. In the recent trip of Mr. Anil, which was to last for 10 or more days, he stayed with his

wife in her place. During the stay, the harassment and cruelty of the appellant crossed the

extreme extent the respondent was compelled to file a petition for divorce on the ground of

cruelty.

The fact that cruelty amounts to divorce has been specifically given under Section 13 (1) (ia)

of the Hindu Marriage Act, 1955. It states that-

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(1) Any marriage solemnized, whether before or after the

commencement of the Act, may, on a petition presented by either the husband or

the wife, be dissolved by a decree of divorce on the ground that the other party-

(ia) has, after the solemnization of the marriage, treated the petitioner with

cruelty.

It was observed in V. Bhagat vs. D Bhagat7 that mental cruelty in Section 13 (1) (ia) can be

broadly defined as that conduct which inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with the other. Mental cruelty

must be of such a nature that the parties cannot reasonably be expected to live together. The

situation must be such that the wronged party cannot reasonably be asked to put up with such

conduct and continue to live with the other party. It is not necessary to prove that the mental

cruelty is such as to cause injury to the health of the petitioner.

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?

(A) The custody of the child to his mother will not be detrimental to his physical and

mental welfare.

Section 17 of Guardians and Wards Act, provides- Matter to be considered by the Court in

appointing guardian.

In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions

of this section, be guided by what, consistently with the law to which the minor is subject,

appears in the circumstances to be for the welfare of the minor.

If the minor is old enough to form an intelligent preference, the Court may consider that

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(1994) 1 FCC 337
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preference.

The Court shall not appoint or declare any person to be a guardian against his will.

Section 13 of Hindu Minority and Guardianship Act, states Welfare of minor to be

paramount consideration.

In the instant case, the Trial Court came to the conclusion keeping in view that welfare of the

child, the custody should be given to the mother. The child would not have had such brilliant

academic record and there would have been no willingness on the part of the child to stay in

the custody of the mother, if her custody would have been detrimental to his physical and

mental welfare.

The glimpse of welfare can be taken as the paramount consideration for custody of the child,

can be traced in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka 8, where

the court held that "The principles of law in relation to the custody of a minor appear to be

well-established. It is well settled that any matter concerning a minor, has to be considered

and decided only from the point of view of the welfare and interest of the minor."

Therefore, the custody of the child to his mother has proved to be beneficial for the overall

growth and welfare of the child who seems to be happy in his present situation.

(B) If the opposition party so wants to question the financial condition of my client in

taking consideration while giving away the custody of her child, then let us make

them aware that my client lived separately in her own flat just after 3 months of their

marriage, and has been living there since then. She owns land and also has properties

in her name. She was aware that once she leaves the husband legally, she is not

entitled for the maintenance which she was receiving from him, but still she wanted

8
AIR 1982 SC 1276
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the divorce. This particular act proves that she was financially sound enough to take

care of herself and her son.

The learned judges in previous judicial decisions of Mt. Mansa Devi v. Makhar9, Middleton

J., clarified that the word "welfare" meant both material and spiritual welfare of the minor. In

Ram Prasad v. District judge, Gorakhpur 10, the Allahabad High Court held that the word

'welfare' meant not only material but 'moral' welfare as well.

Following the facts of the instant case, the child is academically exceptional and also is very

happy in staying with his mother which was proved during the interview of the child. But

during his early school days it is very normal for a boy of such tender age in not knowing to

decide what is right and what is not and hence without having any malafide intention, was

caught stealing his classmate’s personal belonging. The respondent was not informed about

her son’s mischief until the son was caught again by the school authority. The respondent

being a law abiding citizen and having high moral senses, as every caring mother would,

taught her son the ethical values of life and hence no such act was ever repeated by him.

The English law, no less than Indian law, lays emphasis primarily on the welfare of the child.

In Re Mcgrath (Infants)11, Lindley J., said “The dominant matter for the consideration of the

court is the welfare of the child. But the welfare of the child is not to be measured by money

only, or by physical comfort only. The word "welfare" must be taken in its widest sense.”

Bearing these principles in mind, we can say the welfare of the minor can only be attained if

he remains in the custody of the mother.

5. Whether the act of husband (accused of unchastity) actually amount to cruelty?

Yes, the act of husband (accused of unchastity) actually amounts to cruelty.

9
AIR 1936 Pesh 207
10
AIR 1920 All 89
11
(1893) 1 Ch 143
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In Saptami vs. Jagdish12, the husband constantly called the wife a prostitute, a woman of the

street. It was held in this case, that if a spouse is subjected to false accusations of adultery,

insults, humiliations, abuses, false charges of immorality, it would make married life

impossible to be endured and would make a very unhappy and miserable existence. This type

of cruelty is worse than the acts of physical cruelty.

In the instant case, whenever Mr. Anil had business trips to india, he would visit his son who

lived with his mother but I am sorry to say, with every visit of the husband, the

misunderstandings between the spouses became aggravated and the he started questioning the

character, morality and also alleged the respondent of having illegal intimacy with another

man.

In the recent trip of Mr. Anil, which was to last for 10 or more days, he resided at his wife’s

place. During the stay, the harassment and cruelty of the appellant crossed the extreme extent

and the respondent was compelled to approach the court of law to seek justice from such kind

of cruelty and hence she filed a divorce petition on the ground of cruelty.

Section 13 (1) (ia) of the Hindu Marriage Act, 1955 specifically states that-

(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on

a petition presented by either the husband or the wife, be dissolved by a decree of divorce on

the ground that the other party-

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.

Eventually the Honourable Family Court passed an ex- parte decree of divorce in favour of

the respondent.

12
(1970) Cal 272
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PRAYER

In light of the questions presented, and arguments advanced, the agent for the

Respondent most humbly and respectfully prays before this Honourable Court, that it may

be pleased to adjudge and declare that the custody of the minor child should remain in hands

of the respondent (mother) so that the child’s welfare is continued to be taken in the widest

sense including physical, mental, ethical and spiritual level.