Memorial - FL 15 - Petitioner

FL - 15
2ND SURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION, 2020-21
IN THE HON’BLE FAMILY COURT OF NEW DELHI, INDIA
ORIGINAL JURISDICTION
UNDER SECTION 7 OF THE FAMILY COURTS ACT, 1984
Mr. SANDEEP …Petitioner
V.
Mrs. ANJALI …Respondent
UPON SUBMISSION TO THE HON’BLE FAMILY COURT OF NEW

DELHI, INDIA
MEMORANDUM ON BEHALF OF THE PETITIONER

2ND SURANA & SURANA AND ARMY INSTITUTE OF LAWNATIONAL FAMILY LAW MOOT 2
COURT COMPETITION, 2020-21
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS……………………………………………………………………..3
INDEX OF AUTHORITIES…………………………………………………………………….......4
STATEMENT OF JURISDICTION…………………………………………………………….……7
STATEMENT OF FACTS………………………………………………………………………….8
STATEMENT OF ISSUES……………………………………………………………………........9
SUMMARY OF ARGUMENTS…………………………………………………………………...10
ARGUMENTS ADVANCED
I.WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?............................................11
II.WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI...............................16
PRAYER……………………………………………………………………………….…........23
MEMORIAL ON BEHALF OF PETITIONER

TABLE OF ABBREVIATIONS
¶ Paragraph
A.I.R All India Reporter
ANR. Another
ART. Article
HON’BLE Honourable
LTD. Limited
ORS. Others
R/W Read With
S. Section
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Report
V. Versus

INDEX OF AUTHORITIES
TABLE OF CASES
S.NO. CASES CITATION

1. A. Jayachandra v. Aneel Kaur 2005 (1) CTC 215 (SC) :
2005 (2) SCC 22
2. Anuj Chaturvedi v. Jyothi Special Leave to Appeal (C)
Nos. 6303 of 2017. D/d.
4.10.2019
3. Carla Gannon v. Shabaz Farukh Allarakhia Criminal W P No. 509 of
2009 (BOM HC)
4. Dilip Goswami v. State of Tripura W.P. (HC) No. 05 of 2013
5. K.G. v. State of Delhi W.P. (Crl.) No.374/2017
6. Kamla Devi v. Himachal Pradesh AIR 1987 HP 34
7. Kanika Goel v. State of Delhi Miscellaneous Application
No. 2487-2492 Of 2018 In
Criminal Appeal No. 635-
640 Of 2018
8. MausamiMoitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634)
9. Meera Agarwalla Bansal And Anr. v. Shyam I (2002) DMC 593
SundarAgarwalla
10. Naveen Kohli v. Neelu Kohli AIR (2006) SC 1675
11. Nil Ratan Kundu v. Abhijit Kundu ((2008) 9 SCC 413: AIR
2009 SC (Supp) 732)
12. R. V. Srinath Prasad v. Nandamuri Jayakrishna (2001) 4 SCC 71
13. Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263

14. Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840
15. Salome v.Dr.PrinceD.Immanuel Madras HC (C.M.A.(MD)
Nos.238 of 2012 and 239 of
2012)
16. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
17. Sandhya Rani v. Kalyanram Narayanan (1994) Supp. 2 S.C.C. 588
18. Sarah Vijayalakshmi and two others v. 2011 (2) CTC 372
Dr.J.D.Devadatta
19. Sheila B. Das v. P.R. Sugasree (2003) 3 SCC 62
20. Smriti Madan Kansagra v. Perry Kansagra Matrimonial Appeal (F
C)No.30 of 2018; Civil
Miscellaneous Application
No.49507 of 2018
21. Smt. Sadhna Agarwal v. State of Chhattisgarh 2017 SCC OnLineChh 19, 03-
01-2017
22. Tatineni Mayuri v. EdaraBaldev Civil Appeal Nos. 2471-2473
Of 2016
23. Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675
24. Warr v. Warr [1975] I All ER 85)
25. Yashita Sahu v. State of Rajastan (2020) 3 SCC 67: (2020) 2
SCC (Civ) 39, 20-01-2020
LIST OF LEXICONS
1. WHARTON’S CONCISE LAW DICTIONARY, LEXIS NEXIS.

2. BLACK’S LAW DICTIONARY, (10TH ED.)

LIST OF STATUTES REFERRED
1. FAMILY COURTS ACT, 1984

2. HINDU MARRIAGE ACT, 1955
3. HINDU MINORITY AND GUARDIANSHIP ACT, 1956
4. THE GUARDIANS AND WARDS ACT, 1890
5. THE INDIAN MAJORITY ACT, 1875
6. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
7. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007
LIST OF BOOKS REFERRED
1. LAW OF MARRIAGE AND DIVORCE, PARAS DIWAN AND PEEYUSHI DIWAN (7TH ED.)
2. V.N.SHUKLA’S- CONSTITUTION OF INDIA, EBC (13TH ED..)
3. M.P. JAIN – INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS (8TH ED.)
LIST OF LAW COMMISSION REPORTS, GUIDELINES AND INTERNATIONAL

CONVENTIONSREFERRED
1. LAW COMMISSION OF INDIA – 71STREPORT

2. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
3. INDIAN COUNCIL OF MEDICAL RESEARCH (ICMR) GUIDELINES, 2005

STATEMENT OF JURISDICTION
The Petitioner herein has approached the Hon’ble family court of Delhi by invoking section
71 of the Family Courts Act,1984 which states that a family court has and can exercise all the
jurisdictions exercised by the district court of subordinate civil court, corresponding to any
law for the time being in force provided that the disputes are of the nature specified in the
explanation. With effect to the very case the first explanation to this section states that the
family court can handle cases relating to proceeding between the parties to a marriage for a
decree of nullity of marriage (declaring the marriage to be null and void or, as the case may
be, annulling the marriage) or restitution of conjugal rights or judicial separation or
dissolution of marriage, thus making clear that the present court has jurisdiction.
1
Section 7 in The Family Courts Act, 1984
7. Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the other provisions of this
Act, a Family Court shall-"
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under
any law for the time being in force in respect of suits and proceedings of the nature referred to in the
explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following
nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either
of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

STATEMENT OF FACTS
1. Sandeep and Anjali got married in New Delhi as per the Hindu Marriage Act, 1955. After
marriage, Sandeep was soon promoted and got a job offer from the Silicon Valley in USA
and Anjali by that time had just landed a resident position at a local hospital. But Anjali
was forced to move to USA with Sandeep. In order to practise medicine in the states she
had to clear the medical board which she eventually did. Soon after, she realizes that it is
the appropriate time for her to have a child but Sandeep opposes given their financial
instability.
2. Later in 2010, after many failed attempts the couple decided to get their child born through
surrogacy in India and eventually bring him/her with them to USA.
3. After many unsuccessful attempts at finding a surrogate they had finally found Priya who
was willing to act as a surrogate to their baby and it was decided verbally between
Sandeep, Anjali and Priya, that Priya would have no right and access to the child any time
in the future. Sandeep and Anjali then returned to USA.
4. In 2014, a baby girl was born and the couple returned to India. The baby, being a pre-
mature one was advised not to travel for the first few months. Anjali leaves to USA for
work whereas Sandeep stayed back taking care of the baby, and owing to the time he spent
with Priya and the baby he started developing romantic feelings towards Priya and started
ignoring Anjali and his emotional dependence on her also started to fall drastically.
5. Anjali then tries to clarify things with Sandeep, but it led to heated arguments and fights
between them. Sandeep files for divorce, believing that the relationship he had with Anjali
was now over. In the meantime,Priya claimed that she did not want to give up the custody
of the child as she had become emotionally attached to the child. Anjali files for ROCR
and custody of the child.

STATEMENT OF ISSUES
ISSUE I
WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?
ISSUE II
WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI?

SUMMARY OF ARGUMENTS
I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?
The counsel for the Petitioner most reverently submits before this court that Mr. Sandeep is
entitled to file for divorce as the matrimonial bond is irretrievably broken down, not being
alive anymore and also because, there is no cohabitation for almost 6 years now. In order to
protect the sanctity of marriage, to reduce the number of unhappy marriages and to let the
couple live peacefully for the rest of their lives without any further mental agony, it is
necessary to dissolve such a marriage and thus, the case at hand as well.
II. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS.ANJALI?
The counsel for the Petitioner most humbly submits before this court that if sole custody is
granted to Mrs. Anjali, the best interest of the child will be not be adequately served. Section
6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a
Hindu minor is the father and after him, the mother provided the minor has not completed the
age of five years of age. Rule 2(c) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007, defines that “best interest of the child” is a decision taken to ensure the physical,
emotional, intellectual, social and moral development of juvenile or child.” When the child
has developed a certain level of mental, physical and emotional attachment with the father, it
would be traumatizing for the child if she is removed from the father's custody.

ARGUMENTS ADVANCED
I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?
¶1. The Petitioner most reverently submits before the Hon'ble Family court of Delhi that Sandeep
is entitled to file for divorce. According to Section 13 of the Hindu Marriage Act, 1955, there
are certain set grounds under which a person can claim for divorce. But with the changes in
the social mores does it seem fair to grant divorce only on the grounds laid down under the
said section?
I.1. Whether it is fair and just to grant divorce only on the basis of the grounds
mentioned in section 13 of the Hindu Marriage Act, 1955?
¶2. On a general note, it cannot be possible to include all possible scenarios when it comes to a
rigidly framed provision. Especially when it comes to divorce, owing to the changes in the
social mores, having set grounds, only under which divorce can be granted wouldn't serve the
purpose of the law. Thus section 13 must be given a wider scope to provide justice. The Law
Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable
breakdown of marriage. It held that Restricting the ground of divorce to a particular offence
or matrimonial disability causes injustice in those cases where the situation is such that
although none of the parties is at fault, or the fault is of such a nature that the parties to the
marriage do not wish to divulge it, yet there has arisen a situation in which the marriage
cannot be worked; that is, where the marriage has all external appearances of marriage but
none of the reality. In such circumstances, there is hardly any utility in maintaining the
marriage as a facade, when the emotional and other bonds which are the essence of
marriage have disappeared. After the marriage has ceased to exist in substance and in

reality, there is no reason for denying divorce. In a situation like this, the parties alone can
decide whether their mutual relation is emotionally and socially real and strong. Divorce
should be seen as a solution and a way out of a difficult situation.
¶3. Thus, in the present case having lost the very essence of marriage which is the emotional
connect and reliability, it would be impossible for the parties to stay together happily
hereafter. Thus, denying them divorce would not only make my client suffer but also the
respondent in the long run. Here comes into play the doctrine of public interest and the court
should decide taking into consideration the interest of both the parties not only in the present
but in the long run as well.
I.2. Whether irretrievable breakdown of marriage be set as a ground for divorce?
¶4. Irretrievable breakdown of marriage is a situation where the couple can no longer live
together as husband and wife. One partner or both must prove to the court that the marriage
broke down so badly that there is no reasonable chance of getting back together. Till date, the
prevailing laws in India regarding the issue of divorce have not recognized a situation where,
despite the fact that they live under the same roof, their marriage is equivalent to
separation. This is the matter of prime importance to be addressed but is not under the
limelight yet. That is, there is still no codified law for irretrievable breakdown of marriage.
But with the changes in the social mores and in view of the changing nature of marriage in
the society, the Supreme Court has shown special concern over the matter of making
irretrievable breakdown of marriage as a ground for divorce.

¶5. The Supreme Court has with a view to do complete justice and shorten agony of the parties
engaged in long drawn battle, directed dissolution of marriage. Infact, these were exceptional
measures taking up by the SC as divorce can be granted only on the grounds laid down under
section 13. But it did so as it realised the importance of mental agony and pressure that the
parties have to undergo for the rest of their lives if not for this order of divorce.
¶6. In A. Jayachandra v. Aneel Kaur 2, the Supreme Court examined such cases. And after
discussing the facts concluded that When the respondent gives priority to her profession over
her husband's freedom it points unerringly at disharmony, diffusion and disintegration of
marital unity, from which the Court can deduce irretrievable breaking of marriage.The Court
found the marriage irretrievably broken down and granted divorce to the husband. This is
however very surprising, as many a times in similar circumstances the court, rather than
granting a decree for divorce, would grant them an order pertaining to restitution of conjugal
rights holding the notion of a Hindu marriage being sacramental as the very foundation for
the said decree.
¶7. In Sandhya Rani v. Kalyanram Narayanan3, the Court reiterated and took the view that since
the parties are living separately for the more than three years, and have no doubt in our mind
that the marriage between the parties has irretrievably broken down. There is no chance
whatsoever of their coming together. Therefore, the Court in such case, granted the decree of
divorce.
2
2005 (1) CTC 215 (SC) : 2005 (2) SCC 22
3
(1994) Supp. 2 S.C.C. 588

¶8. According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid
ground for divorce but the court in the case of Salome v.Dr.PrinceD.Immanuel4, following
the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To
prevent the appellant from more cruelty, the appeal of divorce has been allowed.
Furthermore, this Court has also dismissed the claim filed by the respondent for the
restitution of conjugal rights
¶9. In Samar Ghosh v. Jaya Ghosh5, the court held that there has been a long period of
continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.
The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like situations, it may lead to
mental cruelty.
¶10. In the case of Rishikesh Sharma v. Saroj Sharma6, this Court observed that the respondent
wife was living separately from the year 1981 and the marriage has broken down irretrievably
with no possibility of the parties living together again. The Court further observed that it will
not be possible for the parties to live together and therefore there was no purpose in
compelling both the parties to live together. Therefore, the best course was to dissolve the
marriage by passing a decree of divorce so that the parties who were litigating since 1981 and
had lost valuable part of life could live peacefully in remaining part of their life. The Court
further observed that her desire to live with her husband at that stage and at that distance of
time was not genuine.
4
Madras HC (C.M.A.(MD)Nos.238 of 2012 and 239 of 2012)
5
(2007) 4 SCC 511
6
(2007) 2 SCC 263

¶11. In Warr v. Warr7, the Court observed that "Section 1(2)(c) of the Matrimonial Causes Act,
1973 provides that irretrievable breakdown may be proved by satisfying the court that the
respondent has deserted the petitioner for a continuous period of at least two years
immediately preceding the presentation of the petition."
¶12. Recently the Supreme Court in Naveen Kohli v. Neelu Kohli8, has recommended an
amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable
breakdown of marriage as a reason to seek the divorce. Expressing the concern that divorce
could not be granted in a number of cases where marriages were virtually dead due to the
absence of the provision of irretrievable breakdown, the court strongly advocated
incorporating this concept in the law in view of the change of circumstances. The profound
reasoning is that in situations when there is absolutely no chance to live again jointly or when
it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the
ground of irretrievable breakdown is really needed. If any of the party to the marriage is not
ready to live with the other party the relationship will not be a happy one. Stretching such a
relationship will do no good, rather will develop hatred and frustration among the parties for
each other.
¶13. Therefore, it is humbly submitted before this hon’ble court that in order to protect the sanctity
of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted
the precious years of the life of the spouses, it is necessary to dissolve such a marriage and
thus in the case at hand as well. Now that this case has been pending for almost 6 years now,
from 2015 to 2021, and the fact that they haven't started living together shows that the
7
[1975] I All ER 85)
8
AIR (2006) SC 1675

marriage is already dead and reiterates the concept of irretrievable breakdown of marriage,
which can again be taken into consideration before granting them divorce.
II. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI?
The counsel for the petitioner most humbly submits that if sole custody is granted to Mrs.
Anjali, the best interest of the child will be not be adequately served. Section 6 of the Hindu
Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor is the
father and after him, the mother provided the minor has not completed the age of five years of
age. Rule 2(c) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, defines
that “best interest of the child” is a decision taken to ensure the physical, emotional,
intellectual, social and moral development of juvenile or child.” When the child has
developed a certain level of mental, physical and emotional attachment with the father, it
would be traumatizing for the child if she is removed from the father's custody.
II.1. Whether disturbing the present custody set-up will benefit the child’s well-being?
¶14. The Petitioner most humbly submits before this hon’ble court that in matrimonial disputes
there are several misconceptions on the issue of custody, visitation rights and guardianship.
Custody implies the living of the child with one parent. Guardianship implies the
proprietorial rights over the child’s person and property. In a traditional family it is the father
who is favoured to be responsible with regard to the issues of proprietorial rights of the minor
whereas the mother is favoured with the issue of being a caretaker of the minor. But when
there is a custody battle neither the father nor the mother are automatically given the custody.

A child is not a chattel nor is he/she an article of personal property to be shared in equal
halves.9
¶15. Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian
of a Hindu minor is the father and after him, the mother provided the minor has not
completed the age of five years then the custody would be with the mother. Under Section 6
(b) in case of an illegitimate minor child it is the mother and after her, the father.
¶16. Section 17 of the Guardians and Wards Act, 1890 describes about the guidelines to be
considered consistently with law to which the minor is subject in appointing of the guardian,
for welfare of the minor.Receiving love and affection from both the parents is a part of
human rights that is vested upon the child even though the parents are estranged and locked
in a matrimonial dispute. 10 A newly born child cannot be left at the, mercy of others. A newly
born child requires rearing and that is the most crucial time when the child requires constant
care and affection."11
¶17. In the present case at hand, the child born to Mr. Sandeep and Mrs. Anjali via the surrogate
mother Ms. Priya has been under the care and observation of the father since day 1. Over the
years, the child would have naturally developed a strong bond of emotional attachment with
the father and transferring or removing a child of tender age from the father's custody in a
hasty manner will have some adverse effects on the mental and the emotional well-being of
the child.
9
Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675
10
Yashita Sahu v. State of Rajastan, (2020) 3 SCC 67: (2020) 2 SCC (Civ) 39, 20-01-2020
11
Smt. Sadhna Agarwal v. State of Chhattisgarh, 2017 SCC OnLineChh 19, 03-01-2017

II.2. Whether the court must apply the Doctrine of ‘Best Interest of the Child’?
¶18. The Petitioner humbly states that the Child Custody Cases in India Rely on the concept of
“Best Interest of the Child / Welfare of the Child.” Article 3.1 12 of the United Nations
Convention on the Rights of the Child (Convention) requires “the best interests of the child”
to be the “primary consideration” “in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies.”
¶19. Furthermore, the Indian legislation has defined this concept under Section 2(9) of the
Juvenile Justice Act, 2000 which states that “best interest of child” means the basis for any
decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity,
social well-being and physical, emotional and intellectual development. It is in the interest of
the State that children should be properly brought up and educated and the State as parens
patriae13 is duty bound to look to the maintenance and education of the children. The Indian
Constitution being alive to this aspect of the matter incorporated it as one of the directive
principles of State Policy in Chapter-IV 39(f).14
¶20. When the question of custody arises, the primary factor of consideration by the courts will be
the welfare of the child, which includes a safe environment for the upbringing of the child.
The ethical background and mental condition of the applicant is important to be considered
while giving custody of the minor child. A balance has to be struck between the attachment
12
The Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of the child.
13
A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to
act on their own behalf.
14
Meera Agarwalla Bansal And Anr. v. Shyam SundarAgarwalla, I (2002) DMC 593

and sentiments of the parties towards the minor children and the primary aspect of the
welfare of the minors, which is of paramount importance.15 Even Orders pertaining to
custody of children passed by consent can be varied by the court, if the welfare of the child
demands deviation from the original order.16
¶21. The Bombay High Court in Carla Gannon v. Shabaz Farukh Allarakhia,17 held that for
determining the final decree, the child’s welfare was the supreme consideration, irrespective
of the rights and wrongs that the parents contend. Apex Court also held in the case of Nil
Ratan Kundu v. Abhijit Kundu18 that the welfare of a child is not to be measured merely in
terms of money or physical comfort, but the word “welfare” must be taken in its widest
possible sense so that the tie of affection cannot be disregarded. The court observes parens
patriae jurisdiction in child custody matters i.e., the problem has to be solved with a human
touch where the paramount consideration is the welfare of the minor child. 19 The courts must
not allow the determination to be clouded by the inter se disputes between the parties, and the
allegations and counter¬-allegations made against each other with respect to their
matrimonial life.20
¶22. In K.G. v. State of Delhi, Court has held that the expression "best interest of child" used by
the Supreme Court in its decisions is wide in its connotation. It cannot be read as being only
the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child
15
R. V. Srinath Prasad v. Nandamuri Jayakrishna, (2001) 4 SCC 71
16
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
17
Criminal W P No. 509 of 2009 (BOM HC)
18
((2008) 9 SCC 413: AIR 2009 SC (Supp) 732)
19
Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62
20
Smriti Madan Kansagra v. Perry Kansagra, Matrimonial Appeal (F C)No.30 of 2018; Civil Miscellaneous
Application No.49507 of 2018

who is only a few years old.21 As far as child custody is concerned, the issue ought not to be
decided on the basis of rights of the parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best interest of the minor child is served. 22
¶23. Statutory provisions dealing with the custody of the child under any personal law cannot and
must not supersede the paramount consideration as to what is conducive to the welfare of the
minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the
welfare of the minor. 23While determining the best interests of the child, “child's ordinary
comfort, contentment, intellectual, moral and physical development, his health, education and
general maintenance and the favorable surroundings” should be taken into consideration. 24
¶24. In the case of Dilip Goswami v. State of Tripura,25 the court made some strong statements
that a child is a tender human being. He/she is not an inanimate object. A child is not a pen
which can be taken out from one pocket and put in another pocket. A child may be as young
as two years old but has emotions and feelings. The court, cannot in writ jurisdiction direct
that the child be taken from the custody of the grandmother and the maternal uncle with
whom the child has been residing for two years and suddenly be handed over to the father.
This process may have to be done over period of time. It is not in the interest of the child to
virtually take him out of the environment in which he is growing up and place him in a totally
new environment to which he is not used to. It is the child's future which is of paramount
importance and rival claims of the parties will have to give way to the interest of the child.
21
W.P. (Crl.) No.374/2017
22
Kanika Goel v. State of Delhi Miscellaneous Application No. 2487-2492 Of 2018 In Criminal Appeal No.
635-640 Of 2018
23
Sarah Vijayalakshmi and two others v. Dr.J.D.Devadatta 2011 (2) CTC 372
24
Kamla Devi v. Himachal Pradesh, AIR 1987 HP 34
25
W.P. (HC) No. 05 of 2013

¶25. The father has been actively involved in all the affairs and matters of the child since birth. It
is pertinent to note that the father chose to stay back and care for the child when the doctors
advised against travelling with the new born. The father, in spite of being a workaholic,
adjusted his lifestyle and made a choice to stay back with the child. When the child has
developed a certain level of mental, physical and emotional attachment with the father, it
would be traumatizing for the child if she is removed or transferred from the father's custody.
Granting sole custody to the mother means that the child will no longer be exposed to the
love and affection of the father. After all, the Supreme Court in the case of Anuj Chaturvedi
v. Jyothi,26 held that the child has the right to receive love and affection from both the
parents. The same was observed by Justice Kurian Joseph in the case of Tatineni Mayuri v.
EdaraBaldev,27 where he stated that the child needs both the mother and father.
II.3. Whether the ‘Best interest of Child’ will be satisfied if sole legal custody is granted
to Mrs. Anjali?
¶26. The Petitioner humbly contends that since paramount importance is given to the doctrine of
best interest of the child, the court will usually abstain from disturbing the custody by way of
transferring the custody of the child from one parent to the other. In the case of Rosy Jacob v.
Jacob A. Chakramakkal,28 the court held that the who is in the was under the custody of the
father is quite healthy and cheerful, doing well at school and that his sojourn with the father
has not prejudicially affected him physically or mentally and hence there was accordingly no
reason to transfer his custody from his father to his mother.
26
Special Leave to Appeal (C) Nos. 6303 of 2017. D/d. 4.10.2019
27
Civil Appeal Nos. 2471-2473 Of 2016
28
(1973) 1 SCC 840

¶27. The Apex court in the case of MausamiMoitra Ganguli v. Jayant Ganguli,29 held that it was
not desirable to disturb the custody of the child and, therefore, the order of the High Court
giving his exclusive custody to the father with visitation rights to the mother was maintained.
¶28. Thus, to conclude, if sole custody is granted to Mrs. Anjali, it will have adverse effects over
the physical, mental and emotional well-being of the child. The child has spent the last 6
years of her life living under the care and guidance of the father. The child is of a very tender
age and getting accustomed to a completely different environment and surrounding will be
challenging. The child has been doing satisfactorily well under the care and guidance of the
father. If sole custody is granted to Mrs. Anjali, it will not serve the best interest of the child.
29
(JT 2008 (6) SC 634)

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed before this Hon’ble Family Court to Hold/Adjudge/Declare that:
• Dismiss the restitution of conjugal rights petition as devoid of all merits,
• Grant a decree of divorce against the couple,
• Dismiss the sole legal custody petition filed by Mrs. Anjali;
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the interest of Justice, Equity and Good Conscience.
For this, the Petitioners shall be duty-bound and forever pray.
The Counsels are also bound by Sacramentum habet in se tres comites, varitatem, justitiam et
judicium; veritas habenda est in jurato; justitia et justicium in judice.
Place: New Delhi, India S/d:__________
Date: 8th April, 2021
COUNSELS FOR THE PETITIONER

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FL - 15

2ND SURANA & SURANA AND ARMY INSTITUTE OF LAW

IN THE HON’BLE FAMILY COURT OF NEW DELHI, INDIA

UNDER SECTION 7 OF THE FAMILY COURTS ACT, 1984

Mr. SANDEEP …Petitioner

Mrs. ANJALI …Respondent

UPON SUBMISSION TO THE HON’BLE FAMILY COURT OF NEW

MEMORANDUM ON BEHALF OF THE PETITIONER

I.WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?............................................11

II.WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI...............................16

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

S.NO. CASES CITATION

2005 (2) SCC 22

2. Anuj Chaturvedi v. Jyothi Special Leave to Appeal (C)

Nos. 6303 of 2017. D/d.

3. Carla Gannon v. Shabaz Farukh Allarakhia Criminal W P No. 509 of

2009 (BOM HC)

4. Dilip Goswami v. State of Tripura W.P. (HC) No. 05 of 2013

5. K.G. v. State of Delhi W.P. (Crl.) No.374/2017

6. Kamla Devi v. Himachal Pradesh AIR 1987 HP 34

7. Kanika Goel v. State of Delhi Miscellaneous Application

No. 2487-2492 Of 2018 In

Criminal Appeal No. 635-

8. MausamiMoitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634)

9. Meera Agarwalla Bansal And Anr. v. Shyam I (2002) DMC 593

10. Naveen Kohli v. Neelu Kohli AIR (2006) SC 1675

2009 SC (Supp) 732)

12. R. V. Srinath Prasad v. Nandamuri Jayakrishna (2001) 4 SCC 71

13. Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263

MEMORIAL ON BEHALF OF PETITIONER

14. Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840

15. Salome v.Dr.PrinceD.Immanuel Madras HC (C.M.A.(MD)

Nos.238 of 2012 and 239 of

16. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511

17. Sandhya Rani v. Kalyanram Narayanan (1994) Supp. 2 S.C.C. 588

19. Sheila B. Das v. P.R. Sugasree (2003) 3 SCC 62

20. Smriti Madan Kansagra v. Perry Kansagra Matrimonial Appeal (F

C)No.30 of 2018; Civil

22. Tatineni Mayuri v. EdaraBaldev Civil Appeal Nos. 2471-2473

23. Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675

24. Warr v. Warr [1975] I All ER 85)

25. Yashita Sahu v. State of Rajastan (2020) 3 SCC 67: (2020) 2

SCC (Civ) 39, 20-01-2020

1. WHARTON’S CONCISE LAW DICTIONARY, LEXIS NEXIS.

MEMORIAL ON BEHALF OF PETITIONER

LIST OF STATUTES REFERRED

1. FAMILY COURTS ACT, 1984

LIST OF BOOKS REFERRED

LIST OF LAW COMMISSION REPORTS, GUIDELINES AND INTERNATIONAL

1. LAW COMMISSION OF INDIA – 71STREPORT

MEMORIAL ON BEHALF OF PETITIONER

be, annulling the marriage) or restitution of conjugal rights or judicial separation or

MEMORIAL ON BEHALF OF PETITIONER

surrogacy in India and eventually bring him/her with them to USA.

in the future. Sandeep and Anjali then returned to USA.

and custody of the child.

MEMORIAL ON BEHALF OF PETITIONER

WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?

WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI?

MEMORIAL ON BEHALF OF PETITIONER

I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?

II. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS.ANJALI?

MEMORIAL ON BEHALF OF PETITIONER