I Mansi and my co- council Nishikant will be representing the petitioner- Raj Malhotra in the

present case. Counsel seeks permission of the Hon’ble Court to call Master Rohan.

Examination in chief – Master Rohan

How are you, Rohan?

I am good.

Are comfortable in answering some questions?

Yes.

Please let us know if you feel uncomfortable in any point of time.

Okay

Please tell your name, age name to the court.

My name is Rohan, I am 8 years old.

Can you please tell us where you are staying and who all are staying with you?

I am staying at Delhi with my sister, my daddy, my grandfather and my grandmother.

How do feel living in Delhi and staying with your grandparents?

I like it here in Delhi. My father, My Grandfather and me all play cricket together and my
grandmother cooks food for us and also get me ready for the school and she stays with us all
the time.

You joined new school please tell us more about your school?

I like my new school and I have even made new friends there Akrit and Kashish.

Rohan, have your parents ever hit you?

Yes, once mummy hit me for lying about my homework but papa has never hit me, he loves
me a lot.

If you had to choose one who does you want to live with Mummy or Daddy?

Daddy always plays cricket with me.

Cross examination- Shivani Malhotra

The counsel seeks permission to the court to cross examine Shivani Malhotra.

I am going to ask you some questions please answer it in yes or no.

Q. Shivani, was this the first incident where Raj had took kids without court’s permission?

YES

Q. Is it true that you moved in with Mr. Ajay Khanna more than a week before January11th
and you are currently residing with him in London?

Yes

Q. Shivani, did you discuss with your ex-husband before taking both of your children to Mr.
Ajay Khanna’s house when you started to live-in with him?

NO

Q. Did you or did you not take 7 days’ time to file a case in London court on 19 th when your
husband failed to handover your children on 11th as you are mostly busy with your office
work?

Yes

Q. You met your children in New Delhi on January 24 th. So you must be aware that they are
currently admitted to a reputed school here?

Yes

Q. Is it or is it not that even though you may believe that Mr. Ajay Khanna may provide
fatherly love to your children, he can never replace your children?

Yes

Q. I put it to you that you are aware that Raj’s Mother is a house wife and she is currently
taking care of the children?

Yes

Q. Have you ever hit your children?

Yes

Q. Are you aware that your son loves to play cricket? And Mr. Raj plays cricket with your
son?

Yes

Q. You accept that Raj Malhotra is a natural guardian of Rohan and Muskaan?

Yes

Q. Is it true that you have made an offer to Raj that if the children are returned to your
custody, you will assist him in getting the arrest warrant withdrawn and also help him in
getting his temporary custody rights of the children restored from the London Court?

Yes, I have made such an offer.

Arguments on law

May it please the court, I would like to humbly submit before this Hon’ble court that it is now
a well settled principle that the correct legal standard to be applied in the cases of custody and
guardianship of minor children is that of the welfare and best interest of the children. In the
case of Ravi Chandran v. Union of India, the Supreme Court has clearly stated that
whenever a question arises before a court pertaining to the custody of a minor child, the
matter is to be decided not on a consideration of the legal rights of the parties, but on the sole
and predominant criterion of what would serve the best interest of the minor. Further, in the
case of Nitya Anand Raghavan v State of Delhi, while dealing with a case where a minor
child had been brought into India by one of the parents in contravention of the order of a
competent foreign court, the Supreme Court held that the principle of comity of courts has no
place in wardship jurisdiction and that the principle of comity of courts cannot be given
primacy or more weightage for deciding the matter of custody of for return of the child to the
native state. On the contrary, the predominant criterion of the best interests and welfare of the
minor outweighs or offsets the principle of comity of courts. In the same case, the Supreme
Court also observed that merely because a parent has violated the order of a foreign court
does not mean that the parent should be penalized for the same and that the conduct of the
parents should not have a penalizing effect on the parent with respect to the custody of the
children. Finally, in the 2019 case of Lahari Sukumari v Sobhan Kodali, the Supreme
Court has categorically held that the principle of the best interest of the child cannot be
overridden by the principle of comity of courts, the citizenship status of the child or the
parents or even the by the fact that a competent foreign court has passed an order with respect
to the custody of the children. In light of these pronouncements by the Supreme Court, which
are binding on this Court, we argue that this Court, while deciding this case, must look past
both the circumstances in which our client brought the children to India and the legal
proceedings before the London court and proceed solely on the basis of the best interests and
welfare of the children. I, therefore, humbly plead the court that my client Raj Malhotra
should retain the custody of the two children for their own benefit. I rest my case.