SAMAR KUMAR BASU NATIONAL MEMORIAL MOOT COURT COMPETITION-2023

BENCH MEMORIAL

SAMAR KUMAR BASU NATIONAL MEMORIAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. OF 2023

IN THE MATTER OF
Mr. SANJAY BEHTA .....APPELLANT

Versus

Mrs. DIVYA SETH ....RESPONDENT

TO BE USED WHEN APPELLANT IS ARGUING

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FACTS

1. Mrs. Divya Seth is an Indian lawyer famous for her activism for LGBT+ community .
She is married to another lawyer Mr. Sanjay Behta . Mr. Behta describes himself as a person
of traditional and orthodox thoughts. Both of them used to practice in Allahabad High Court,
Lucknow Bench. Although the couple had extreme opposing views, but they never let their
views to come in between their matrimonial life.
2. In the year 2009, the couple was blessed with a biological boy Anubhav Seth. Anubhav
was not like other boys. He liked to play with dolls instead of cars. In school, he felt more
comfortable in company of girls than that of boys.
3. Anubhav didn’t have many friends in school. Although he was excellent in studies, art
and dance, but he was always made fun of by the boys in school. In the year 2019, when
Anubhav was in 6th standard, some of his classmates started to call him gay. The poor Anubhav
didn’t know what all these meant.
4. He was subjected to consistent bullying by his classmates. The boys used to beat him,
pull his pants down and call him all kind of slangs. Even the girls used to tease him by saying
that he was one of them.
5. Hurt by these constant bullying, Anubhav started to avoid going to school by making
one excuse after another. On 01.08.2019, His parents asked him as to what was wrong, then he
told entire scenario to them. He accepted that it was true that he didn’t like to do what other
boys were doing and he felt more comfortable in the company of girls than that of boys.
6. His mother Mrs. Seth quickly came to a conclusion that Anubhav was not actually a
boy but he was a “Woman trapped in a man’s body”. She told him not to worry about it as it
was completely normal. However his father Mr. Sanjay was worried that what his son told him
might be sign of a psychological disorder . He suggested to his wife that they should take
Anubhav to a psychologist to understand if there is something wrong with him. Mrs. Seth
however outrightly dismissed the suggestion of his husband.
7. Nevertheless, On 10.08.2019 Mr. Sanjay took him to one of the India’s best
psychologist Dr. Aditya Shrivastava who had a clinic near bhool-bhulaiya in Lucknow. After
thorough examination, the doctor came to conclusion that Anubhav was suffering from Gender
dysphoria. The doctor suggested that gender dysphoria can be treated if the treatment is started
early. The treatment was to include Hormone therapy, counselling etc.
8. Mr. Sanjay told this to his wife who got very angry. She accused Sanjay of being
homophobic and said that she was proud of her son and she won’t allow anyone to subject her
son to any kind of medical treatment.
9. Mrs. Seth was extremely supportive for her son. She always told him that there’s
nothing wrong if he feels that he is a woman or if he identifies as a woman. She assured him
that she will always stand by his side even if the world was against him.
10. Anubhav also started to feel that he was a woman trapped in a man’s body. He started
to watch documentaries about persons who claimed that they were trapped in wrong gender
identity. Anubhav was deeply inspired by the story of Caitlyn Jenner.

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11. Of all the documentaries Anubhav watched, many of the persons had undergone gender
reassignment surgeries also commonly known as sex change operation.
12. Anubhav decided that he also wants to undergo sex change operation and become a
woman. He told his wish to her mother who quickly agreed to it. Mr. Sanjay however was
totally against this. He told his wife that Anubhav was too young to take such big decisions of
his life . He also told her that it’s possible that Anubhav was just confused about his identity,
and as he grows up, he might grow out of this confusion. And if not, then surely, he will become
mature enough to take such big decisions about his own life.
13. Mrs. Seth however, again rebuked him and called him homophobic. She told him that
she has had enough and she will decide what’s good for his son and what’s not. If her son wants
to become a woman, she will make sure that he becomes a woman.
14. On 01.09.2019 the couple had an ugly fight. Mr. Sanjay told her that she cannot always
have the last word, and that too in such big decisions of life of their son. He said that he also
had a right to decide as to what is right or wrong for their son. Mrs. Seth however said that it
is her who has given birth to Anubhav and thus she has the exclusive right to take decisions
about good or bad about her son. She also said that it was her mistake that she married a man
with such a bad mentality. The quarrel between the couple grew worse and in the heat of
quarrel, Mr. Sanjay slapped Mrs. Divya.
15. The next morning, Mrs Seth along with Anubhav left her matrimonial home and went
to house of her father. Mr. Sanjay apologized to her for what had happened and requested her
to return back. Mrs. Seth however told him that she will return with only if he will support her
in her decision for Anubhav’s sex change operation. To this, Mr. Sanjay said that whatever she
was doing was against the welfare of Anubhav and he too had a right to decide as to what is in
the best interest of his child. Upon this, both of them again had a fight and Mr. Sanjay returned
to his home.
16. On 20.01.2020, Mrs. Divya took Anubhav to Delhi against wishes and consent of Mr.
Sanjay for gender reassignment surgery. The surgery was successful and Anubhav was now a
girl.
17. Deeply hurt by actions of his wife, Mr. Sanjay Behta filed a petition for divorce on
06.02.2020 on the ground of cruelty before the family court, Lucknow. Mr. Behta has also filed
a petition for custody and guardianship of Anubhav. All of the petitions were filed in
accordance with the provisions of Hindu Law. Mrs. Behta contested all the petitions. All the
petitions/applications were clubbed together.
18. In custody suit, statement of Anubhav was recorded before the court in which he stated
that his father was a very nice person and he always fulfilled all of his demands. He never acted
cruelly with him. However, his father didn’t support him and his mother in their decision of
gender reassignment surgery. He further stated that he wants to live with both of his parents.
19. The family court vide its common judgment and decree dated 02.03.2021 granted
divorce to Mr. Sanjay on the ground of cruelty. The family court also granted custody of
Anubhav to Mr. Sanjay for the reason that it was in the interest of greater welfare of child. The
family court also declared Mr. Sanjay as Guardian of Anubhav.

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20. Aggrieved by the judgment and decree of family court, Mrs. Divya filed an appeal
before Hon’ble Allahabad High Court, Lucknow bench.
21. The High Court vide its judgment and order dated 06.04.2022 set aside the judgement
and decree dated 02.03.2021 passed by the family court. The High Court held that supporting
her son in his decision for undergoing sex change operation doesn’t amount to cruelty. The
High Court also held that right to determine one’s own gender is an essential part of welfare of
a child and actions of a mother supporting his decision cannot be termed as cruelty. The High
Court also held that Mr. Sanjay acted against the welfare of his son by not supporting him in
his decision to undergo gender reassignment surgery and thus he is not entitled to custody and
guardianship of Anubhav and that it was in interest of welfare of Anubhav that his custody
remains with Mrs. Seth. Mrs. Seth was also declared as legal guardian of Anubhav.
22. Aggrieved by the judgment and order dated 06.04.2022 passed by the High Court, Mr.
Sanjay filed an appeal before the Hon’ble Supreme Court on 18.04.2022.
23. The Supreme Court had issued notices to Mrs. Divya while framing the following
issues-
1. Whether a child of tender age of 11 years can take decision upon his own welfare
especially when such decision relates to complex issues of gender identity?
2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery without consent of Mr. Sanjay amount to cruelty and acting against
welfare of child?
3. Whether actions of Mr. Sanjay not supporting Anubhav in his decision to undergo
gender reassignment surgery can be termed as acting against the welfare of child?
24. Pleadings have been completed and the matter has been kept for final hearing.

ARGUMENTS ADVANCED

Issue 1:

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Whether a child at tender age of 11 years can take decision on his own regard especially
when such matters relates to issue of complex gender identity?

1. It is most humbly submitted before this Hon’ble court that a minor child can take decision
on his own regard with complex issue of Gender identity. It is submitted that many 11year
old children have the ability to understand and evaluate the consequences of their action.
Even in IPC, only child below the age of 7 has been given absolute immunity and
considered as doli incapax. Right to bodily autonomy is a fundamental aspect of personal
freedom and human rights. Acknowledging that, children have bodily autonomy is a crucial
aspect in understanding the decision-making capacity of a 11year old child.

1.1 That the informed consent can be given by minor

2. Minors in gamut of cases deemed to be capable of providing informed consent based on

the nature of the decision and their level of understanding. The primary consideration courts
have taken is that the best interest and welfare of the minor. In Suchitha Srivastav v.
Chandigarh Administration1, SC allowed a minor’s Informed decision to undergo
Medical Termination of Pregnancy under the MTP act considering the best interest of the
Minor and her Right to bodily Autonomy.

1.1.1 Decision making capacity of Minor and the concept of Informed consent
3. Mental Healthcare Act, 2017 defines minor as a person who has not completed 18 years
of age. The autonomy of individuals including minor is protected through the requirement
of informed consent .This ensures a genuine respect for human dignity since every person
has a right to determine what is done to their body. Children who are legally too young to
give consent to treatment must still be treated as individuals whose rights as members of
society are not solely dependent on the legal definition of the day. Section 2(i) of the
Mental Healthcare Act, 2017 defines “informed consent” as consent given for a specific
intervention, without any force, undue influence, fraud, threat, mistake or
misrepresentation and obtained after disclosing to a person adequate information including
risks and benefits of and alternatives to the specific intervention in a language and manner
understood by a person.

1
Suchitha Srivastav v. Chandigarh Administration AIR 2009 9 SCC 1

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4. In Wallace v. Labrenz 2, the court applying the doctrine of parents patriae, ordered a state-
appointed guardian to consent to medical care for children even if parents objected, valuing
the informed consent of minor.

1.1.2 Doctrine of Mature minor

5. Early U.S. case, Smith v. seibly,3 before the Washington Supreme Court, establishes
precedent on the mature minor doctrine. The doctrine of mature minor was developed to
ensure treatment of minors (1) when parental consent may cause intra-family conflict or be
difficult to obtain (2) to protect physicians who treat mature minors. The doctrine permits
mature minors to seek required medical treatment with confidentiality. The court while
disposing smith v seibly quoted: "Thus, age, intelligence, maturity, training, experience,
economic independence or lack thereof, general conduct as an adult and freedom from the
control of parents are all factors to be considered in such a case [involving consent to
surgery]." The doctrine had been adopted in various cases in the US. In re E.G 4 the court
granted a 17year old minor the right to refuse to blood transfusion.
6. The West Virginia SC, in Belcher v. Charleston Area Medical Center 5defined a "mature
minor" exception to parental consent, according consideration to seven factors to be
weighed regarding such a minor: age, ability, experience, education, exhibited judgment,
conduct, and appreciation of relevant risks and consequences.
7. The SC of Canada recognized mature minor doctrine in A.C. v. Manitoba6. In ruling A.C.
v. Manitoba found that children may make life and death decisions about their medical
treatment. In the majority opinion, Justice Rosalie Abella wrote:
"The result of this [decision] is that young people under 16 will have the right to
demonstrate mature medical decisional capacity. ...If, after a careful analysis of the
young person’s ability to exercise mature and independent judgment, the court is
persuaded that the necessary level of maturity exists, the young person’s views ought
to be respected."

2
Wallace v. Labrenz 104 N.E.2d 769 (iii. 1952)
3
Smith v. seibly 72 Wn.2d 16, 431 P.2d 719 (1967)
4
re E.G 549 NE 2d 322 (1989)
5
Belcher v. Charleston Area Medical Center 422 S.E.2d 827 1992
6
A.C. v. Manitoba 2009 SCC 30

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8. In Planned parenthood of central Missouri v. Danforth 7the court held that a minor does
not need parental consent if she is sufficiently mature to understand the procedure and to
make an intelligent assessment of her circumstances.”

1.1.3 Due regard must be given to International conventions and Foreign Judgments
9. It is Submitted that a reliance could be placed on the International conventions that India
has ratified as relied upon by this Hon’ble court while disposing vishaka v State of
Rajasthan 8.
10. Art. 51 of the constitution of India read as follows: 51.Promotion of international peace
and security: The state shall endeavor to -a) promote international peace and
security: b) maintain just and hon’ble relations between nations; c) foster respect for
international law and treaty obligations in the dealings of organised peoples with one
another; and encourage settlement of international disputes by arbitration.
11. Here, a directive principle has been set up for courts to follow, and apply as and when
necessary, which includes fostering respect for international treaties and laws. Indian courts
have, time and again read international conventions into Art. 14 and 21 of the constitution
in cases like the Sunil batra v Delhi Administration 9, Salil Bali v UOI 10, and others.
12. In the case Mohammad salimullah v UOI 11
, it was observed that “it is a well settled
principle that courts of Law can draw inspiration from international covenants/treaties, so
long as they are not in contravention of municipal law.”
13. In the present case as well similar interpretation can be made with regard to the UNCRC
that provides for a comprehensive set of rights given for Children. Art. 12 of the convention
assures to the child the right to form his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child and Art. 13 assures that the child shall
have the right to freedom of expression: this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers either orally and in
writing or in print, in the form of art or through any media of the child’s choice.

7
Planned parenthood of central Missouri v. Danforth 428 U.S. 52,53 (1976)
8
vishaka v State of Rajasthan AIR 1997 6 SCC 241
9
Sunil batra v Delhi Administration 1978 4 SCC 494
10
Salil Bali v UOI 2013 7 SCC 705
11
Mohammad salimullah v UOI 2021 SCC Online SC 296

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14. The Yogyakarta principles on the application of international human rights law in relation
to sexual orientation and gender identity that address a broad range of human right
standards and their application to the issues of sexual orientation gender identity.
Principle 1 reads as follows: “1.The right to the universal enjoyment of human rights. All
human beings are born free and equal in dignity and rights. Human beings of all sexual
orientations and gender identities are entitled to the full enjoyment of all human rights.”
and principle 19 reads as : “19. The right to freedom of opinion and expression. Everyone
has the right to freedom of opinion and expression, regardless of Sexual Orientation or
gender identity”

15. India has ratified the above mentioned covenants, hence, those covenants can be used by
the municipal courts as an aid to the Interpretation of Statutes by applying the Doctrine of
Harmonization.
1.2 That the Right to bodily autonomy is within the purview of Article 21:

16. Article 21 of the Constitution of India reads as follows: “21. Protection of life and personal
liberty – No person shall be deprived of his life or Personal law except according to the
procedure established by law.” As quoted in National legal services authority v union of
India12 . “Article 21 is the heart and soul of the Indian Constitution, which speaks of the
rights to life and personal liberty. Article 21 protects the dignity of human life, one’s
personal autonomy, one’s right to privacy, etc.”
17. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi 13, , this Court held
that the right to dignity forms an essential part of our constitutional culture which seeks to
ensure the full development and evolution of persons and includes “expressing oneself in
diverse forms, freely moving about and mixing and comingling with fellow human beings”.
18. In Anuj Garg v. Hotel Association of India14, this court held that “personal autonomy
includes both the negative right of not to be subject to interference by others and the
positive right of individuals to make decisions about their life, to express themselves and to
choose which activities to take part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the realm of personal liberty
guaranteed under Art. 21 of the Constitution of India.”

12
National Legal Services Authority v Union of India and ors AIR 2014 SC 1863
13
Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981 1 SCC 608
14
Anuj Garg v. Hotel Association of India 2008 3 SCC (Para 34-35)

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1.2.1 Minors have equal right in exercising the right to bodily autonomy:
19. As quoted in National legal services authority v union of India, “Indubitably, the issue of
choice of gender identify has all the trappings of a human rights”. Also in State of
Rajasthan v S 15
it was quoted that “Bodily integrity is a facet of the right to life.”
20. Art. 6 of the Convention of Child Rights establishes the every child has the inherent right
to life.
21. Recognizing this right to bodily autonomy as a fundamental right applicable to minors, the
three judges bench of Hon’ble SC in the case of Suchita Srivastava(Supra) wherein it was
observed as : 11-The right to make reproductive choices is also a dimension of “personal
liberty as understood under Arti. 21 of the constitution of India.” Thus allowing a Minor
girl to exercise reproductive choices.
22. In Ashu Dutt v Aneesha Dutt 16, the HC of Bombay stated that : “It is important to note
that children cannot be treated as chattel or property where the parents would have
absolute rights over the destiny and life of their children. The paramount consideration is
the welfare of the child and not the legal rights of the parents.” Thus emphazing the
decision making ability of a minor child regarding his own welfare.
23. Sec. 4 of the TPPRA recognizes the identity of transgender person regardless of age. Sec.
4 read as:“4 Recognition of identity of transgender person.—(1) A transgender person
shall have a right to be recognised as such, in accordance with the provisions of this Act.
(2) A person recognised as transgender under sub-section (1) shall have a right to self-
perceived gender identity. “
24. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the
International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every
human being has the inherent right to live and this right shall be protected by law and that
no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition,
everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and reputation and that everyone has
the right to protection of law against such interference or attacks.
25. In Christine Goodwin v. United Kingdom 17, the court after referring to the Convention for
the protection of Human rights and Fundamental Freedom ,1997 held as follows:

15
State of Rajasthan v S D.B. Spl. Appl. Writ No. 1344/2019
16
Ashu Dutt v Aneesha Dutt Family court appeal no. 17 of 2021
17
Christine Goodwin v. United Kingdom (Appln No.28957/95) 2002

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“Nonetheless, the very essence of the Convention is respect for human dignity and human
freedom. Under Article 8 of the Convention in particular, where the notion of personal
autonomy is an important principle underlying the interpretation of its guarantees,
protection is given to the personal sphere of each individuals, including the right to
establish details of their identity as individual human beings (see, inter alia, Pretty v. the
United Kingdom no.2346/02, judgment of 29 April 2002, 6218, and Mikulic v. Croatia,
no.53176/99, judgment of 7 February 2002, 5319, both to be published in ECHR 2002…).”
Hence it is based on this conclusive evidence the counsel submits that minor has an equal
right in exercising the right to bodily autonomy.
1.2.2 Doctrine of Gillick competence:
26. The Gillick competence is a standard based on the judicial decision of Gillick v West
20
Norfolk and Wisbech Area Health Authority and is used in medical law to decide
whether a child (a person under 16 years of age) is able to consent to their own medical
treatment, without the need for parental permission or knowledge. The majority held that
“in some circumstances a minor could consent to treatment, and that in these
circumstances a parent had no power to veto treatment.”
27. Lord Scarman's test is generally considered to be the test of 'Gillick competency'. He
required that a child could consent if they fully understood the medical treatment that is
proposed: “As a matter of law the parental right to determine whether or not their minor
child below the age of sixteen will have medical treatment terminates if and when the child
achieves sufficient understanding and intelligence to understand fully what is proposed.”
Needless to mention similar provision is made in Scotland by the Age of Legal Capacity
(Scotland) Act 1991. Sec. 2(4) of the said act read as “A Person under the age of 16 years
shall have the legal capacity to consent on his own behalf to any surgical, medical or dental
procedure or treatment wherein the opinion of a qualified medical practitioner attending
him, he is capable of understanding the nature and possible consequences of the procedure
or treatment.”
28. In Secretary of the Department of Health and Community Services v JWB 21, concerning
whether a child has the capacity to make decisions for themselves, and when this is not
possible, who may make decisions for them regarding major medical procedures has been

18
Pretty v. the United Kingdom no.2346/02, judgment of 29 April 2002, 62
19
Mikulic v. Croatia, no.53176/99, judgment of 7 February 2002, 53
20
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
21
Secretary of the Department of Health and Community Services v JWB (1992) 175 CLR 218

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held in accordance with the views in Gillick v West Norfolk and Wisbech Area Health
Authority. In the case, the HC ruled that “while parents may consent to medical treatment
for their children, the authority does not extend to treatment not in the child's best interests.
Also, the Court held that if medical treatment has sterilization as its principal objective,
parents do not have the authority to consent on behalf of their child. “
22
29. In Bell v Travistock , The Court of Appeal said that "it was for clinicians rather than
the court to decide on competence" to consent to receive puberty blockers applying the
Gillick competence test.
1.3 That the best interest and welfare of the child is the utmost concern.
30. Art 3 of the UN convention of child rights read as: In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.
31. Also in Ashu dutt v Aneesha Dutt it was held that the paramount consideration is the
welfare of the child and not the legal rights of the parents. “18. It is important to note that
children cannot be treated as chattel or property where the parents would have absolute
rights over the destiny and life of their children. The paramount consideration is the welfare
of the child and not the legal rights of the parents. “23. ….. it is the responsibility of the
Court to enter into the role of a guardian for the child and, by considering the paramount
interest of minor”
32. Hon’ble the SC in the cases of Mrs. X And Ors vs Union Of India And Ors 23
and Suchitha
Srivastav (supra) has permitted termination of pregnancy of minor woman in the capacity
of a Guardian, parens patriae, acting in the best interest and welfare of the child.
33. The Hon’ble SC while disposing NALSA v union of India (supra) quoted:“ 34. Person
who have undergone SRS, the test to be applied is not the “Biological test”, but the
“Psychological test”, because psychological factor and thinking of transsexual has to be
given primacy than binary notion of gender of that person. Seldom people realize the
discomfort, distress and psychological trauma, they undergo and many of them undergo
“Gender Dysphoria’ which may lead to mental disorder.” “75 As already indicated, we
cannot accept the Corbett principle 24 of “Biological Test”, rather we prefer to follow the

22
Bell v Travistock [2021] EWCA Civ 1363
23
Mrs. X And Ors vs Union Of India And Ors [2021] EWCA Civ 1363
24
Corbett v Corbett P 83 2 All E.R. 33

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psyche of the person in determining sex and gender and prefer the “Psychological Test”
instead of “Biological Test”.
1.3.1 Principal of care and protection:
34. Chapter 2 of the Juvenile Justice Act gives the general principle of care and protection of
children . Some of the principles are:(ii) Principle of dignity and worth: All human beings
shall be treated with equal dignity and rights. iii) Principle of participation: Every child
shall have a right to be heard and to participate in all processes and decisions affecting his
interest and the child’s views shall be taken into consideration with due regard to the age
and maturity of the child. (iv)Principle of best interest: All decisions regarding the child
shall be based on the primary consideration that they are in the best interest of the child and
to help the child to develop full potential. (x) Principle of equality and non-discrimination:
There shall be no discrimination against a child on any grounds including sex, caste,
ethnicity, place of birth, disability and equality of access, opportunity and treatment shall
be provided to every child.
35. The Principle of best interest theory is that the child's welfare is taken to be the paramount
consideration in any matter related to the child. In the present case, Anubhav can't live as a
boy in the future ashe self-identified himself to be a woman and that the surgery done after
majority may be counter- productive ad that the surgery before attaining majority is
favourable for the following reasons: 1. Alleviating Gender dysphoria 2. Improved Surgical
outcomes3. Psychological benefits and 4. Aids in social integration.
36. Art. 18 of the UN CRC read as: “Parents or, as the case may be, legal guardians, have the
primary responsibility for the upbringing and development of the child. The best interest
of the child will be their basic concern”
37. Therefore the counsel for the respondents humbly submits that the decision made by a 11
year old minor regarding his own gender identity is valid in the eyes of Law.

2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery without consent of Mr. Sanjay amount to cruelty and acting against
welfare of child?

38. Anubhav was being subject to constant bullying by his friends and classmates. Being
subjective to such kind of actions cause depression, which may even lead to suicidal
attempts. Child’s welfare must be given priority by Mr. Sanjay, rather than owing to his
own traditional, orthodox views. As stated by Anubhav, his father was not supportive in

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his decision. It his humbly submitted that, actions of Mrs. Divya Seth does not amount to
cruelty and acting against welfare of child.

2.1 Woman trapped in a man’s body- a normal scenario:

39. The Indian country has recognised transgender as third gender, making the condition as a
normal scenario. Also as stated in Art. 14, 15, 16, 19, and 21 of the Indian Constitution,
"enjoyment of life by all citizens and an equal opportunity to grow as human beings
irrespective of their race, caste, religion, community, social status, and gender" is the
"golden thread" that unites the equality system. In Pawan Kumar v State of Himachal
Pradesh25, the SC held that the right to live with dignity as guaranteed under art 21 of the
constitution cannot be violated. Right to self-determination is an important offshoot of
gender justice discourse- hon’ble SC held in Anuj Garg and ors v Hotel Association of
India and ors. A person's right to self-determination and dignity are intrinsically tied to the
gender to which they belong and are related. Opposition by Mr. Sanjay has led to systematic
denial of the child’s right to equal protection under the law.

2.1.1 Transgender protection act:

40. In the wake of the Nalsa Judgment, the Indian parliament enacted the Transgender Persons
(Protection of Rights) Act,2019. Sec. 2(k) of TPA defines “transgender person” means a
person whose gender does not match with the gender assigned to that person at birth and
includes trans-man or trans-woman, person with intersex variations, genderqueer and
person having such socio-cultural identities as kinner, hijra, aravani and jogta.
41. Also sec. 4 of this act provides for the recognition of identity of transgender persons.
According to this sec.1) A transgender person shall have a right to be recognised as such,
in accordance with the provisions of this Act. (2) A person recognised as transgender under
sub-section (1) shall have a right to self-perceived gender identity.
42. Sec. 3 TPA prohibits discrimination against transgender persons. No person or
establishment shall discriminate against a transgender person. Hence it is humbly
submitted that, the actions of Mr. Sanjay not consenting to his child’s gender reassignment
surgery deprives his child from it’s right to recognition as transgender and is violative of
it’s right against discrimination based on gender.

25
Pawan kumar v. State of himachal Pradesh, CDJ (2017) SC 510

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2.1.2 Right to expression under article 19(1)(a):

43. Art. 19(1)(a) of the Constitution guarantees the freedom of speech and expression, which
includes the freedom to express one’s sexual identity and personhood. This Hon’ble Court
in National Legal Services Authority v. Union of India, held that: “Art. 19(1) (a) of the
Constitution states that all citizens shall have the right to freedom of speech and expression,
which includes one’s right to expression of his self-identified gender. Self-identified gender
can be expressed through dress, words, action or behaviour or any other form. No
restriction can be placed on one’s personal appearance or choice of dressing, subject to
the restrictions contained in Art.19(2) of the Constitution.”
44. Elaborating on the strong linkages between Art.19(1) and Art.21, this Hon’ble Court held
in K.S. Puttaswamy vs. Union of India26 “The freedoms under Art.19 can be fulfilled where
the individual is entitled to decide upon his or her preferences.” In the case of Murarilal v.
Saraswati27, 1925, the Court came to the conclusion that the wishes of the children were an
important consideration and that the age at which the child is capable of expressing his
intelligent preferences is determined by the child's mental development or maturity. Thus
it is humbly submitted that, Anubhav has rights to decide upon his expressed gender as it
is vested in art.19(1)(a) of the Indian constitution.

2.1.3 NALSA judgement:

45. The transgender persons have the right to decide their self-identified gender, as upheld by
the SC in NALSA v Union of India, which has been reiterated in Justice K. Puttaswamy v
Union of India and again in Navtej Singh Johar v Union of India28. The SC in the NALSA
judgment had stated that transgender persons would fall within the expression “person”
and would be entitled to legal protection of laws in all spheres of State activity as enjoyed
by other citizens of the country.
46. Child-centric human rights jurisprudence that has been evolved over a period of time is
founded on the principle that public good demands proper growth of the child, who are the
future of the nation, Vivek Singh v. Romani Singh29.

26
Justice K.S. Puttaswamy v Union of India ans ors (2017) 10 SCC 1
27
Murarilal vs Smt. Saraswati AIR 2004 MP 18
28
Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice AIR 2018 SC
4321
29
Vivek Singh v. Romani Singh, (2017) 3 SCC 231

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47. In the case of G. Nagalakshmi v. Director General of Police30 the Madras HC observed
that in the absence of any special law, any person has the liberty to choose their sexual or
gender identity, and upheld the petitioner’s right to choose their own gender. Thus it is
humbly submitted that there is no national law or Allahabad state law that restricts
transgender reassignment surgery and thus Anubhav is entitled to undergo gender
reassignment surgery upon his welfare.

2.2 Being supportive to the child :

48. Various international guidelines stress the importance of involving children in decision-
making regarding medical treatments. According to art. 12 of the UNCRC, “State Parties
shall assure to the child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child”.
49. In Fulkumari v. Budh Singh31, the court stated that, while the desires of the parents were
not decisive, they were to be given considerable weight. Thus, it is humbly submitted that,
Anubhav has right to give consent towards his medical treatment and his mother’s action
of standing beside the decision does not amount to cruelty against her husband.

2.2.1 International conventions:

50. Art. 13 of CRC provides that (1) The child shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart information and ideas of all
kinds. According to art. 19 of UDHR, everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas. In the State of U.P. v. Raj Narain32, the SC
observed that the right to know is derived from the concept of freedom of speech.
51. Also according to art. 19 of ICCPR, 1. Everyone shall have the right to hold opinions
without interference. 2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of all kinds.
52. According to art.14 of UNCRC, (1) States Parties shall respect the right of the child to
freedom of thought, conscience and religion. (2) States Parties shall respect the rights and
duties of the parents and, when applicable, legal guardians, to provide direction to the

30
G. Nagalakshmi v. Director General of Police (2014)7MLJ 452
31
Fulkumari Bibee vs Budh Singh Dhudhuria And Anr. 1914 Ind 25 Cas 112
32
State of U.P. v Raj Narain, AIR 1975 SC 865

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child in the exercise of his or her right in a manner consistent with the evolving capacities
of the child. Thus, it is humbly submitted that, as per article 13 of CRC, article 19 of UDHR,
and Article 19 of ICCPR, Anubhav has right to access of information from the various
documentaries that he has watched and decide on his gender reassignment surgery also, as
per article 14 of CRC, the respondent has rights in such decision making of her child’s
gender reassignment surgery.

2.2.2 Section 89 of IPC:

53. Sec. 89 of IPC states that, nothing which is done in good faith for the benefit of a person
under twelve years of age, or of unsound mind, by or by consent, either express or implied,
of the guardian or other person having lawful charge of that person, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause or be known by the
doer to be likely to cause to that person. Hence it is humbly submitted that, the actions of
Mrs. Divya are in good faith for benefit of the child. As a parent she has every rights to
take decisions upon his best interest and welfare.

2.3 Child gender reassignment surgery:

54. Gender-affirming surgery (GAS) is a surgical procedure, that alters a transgender or

transsexual person's physical appearance and sexual characteristics to resemble those
associated with their identified gender. In B.R.B v. J.B33 it was held: When scientific
advances give fresh means of ascertaining it, there should not be any hesitations to use
those means whenever the occasion requires. Here, Mrs. Divya took Anubhav for his
gender reassignment surgery, a male kid who felt femininity in him and wished to under
surgery. Also doctors do not perform surgery on a child simply because the child has been
bought and consented to it. Hence it is humbly submitted that the surgery was made in the
best interest and welfare of Anubhav.

2.3.1 Anubhav being subject to constant bullying:

55. The hon’ble SC held with the issue of bullying for the first time in Vishaka and Ors. v.
State of Rajasthan and Ors34. Here comes the role of the parents in taking proper care of
the child. Mr. Sanjay gave priority to his own views rather than thinking the child’s welfare.

33
B.R.B v. J.B 1968 2 All ER 1023 CA
34
Vishaka and Ors. v. State of Rajasthan and Ors, AIR 1997 SC 3011

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In these kind of situations, child’s welfare must be of foremost consideration and Mrs.
Divya seth acted accordingly.

2.3.2 Parent consent on child’s healthcare:

56. The Australian Family Court has judged that a family can consent to the sterilisation of
their child, aged 5, without Court authorisation in the case of Re: Carla35. As per the
judgement, if she does not undergo the proposed surgical procedure, the doctors say Carla
a 5year old would, in the circumstances of the onset of male puberty, be at increased risk
of developing mental health problems. The medical evidence recommends that the
procedure be performed prior to Carla commencing puberty and supports the position that
there is no reason to delay the procedure.
57. Hence, as mentioned in the case of Re: Carla, Anubhav can undergo surgery on parent’s
decision as well and him not undergoing the surgery may cause him severe psychological
impacts and for sure it will put him in state of depression.

2.3.3 Protection of child’s health, freedom and dignity:

58. According to Art.39(f) of the Indian constitution, children must be given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and material
abandonment.
59. It is here that a heavy-duty is cast on the court to exercise its judicial discretion judiciously
in the background of all the relevant facts and circumstances, bearing in mind the welfare
of the child as the paramount consideration, Mausami Moitra Ganguli v. Jayant
Ganguli36. Thus it is humbly submitted that the decision of both the respondent and her son
or valid and a necessary one for the welfare of Anubhav.

60. It is contended before this Hon’ble S.C that the WPATH Standards of Care for surgery
supports the decision-making capabilities of Anubhav.When it comes to genital surgery for
gender incongruence/dysphoria we must make reference to the World Professional
Association for Transgender Health (WPATH) who currently publishes the Standards of
Care (SOC). The 8th version of the WPATH Standards of Care (SoC8) removed any age-

35
RE: CARLA (MEDICAL PROCEDURE) [2016] FamCA 7
36
Mausami Moitra Ganguli v. Jayant Ganguli (2009) 1 SCC 42

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based recommendation, with a shift towards a more individualized assessment of the

patient's best interests37.

2.4 Custody and guardianship of Anubhav:

61. The hon’ble HC of Allahabad held that Mr. Sanjay acted against the welfare of his son and
thus he is not entitled to custody and guardianship of Anubhav and that it was in interest of
welfare of Anubhav that his custody remains with Mrs. Seth. Mrs. Seth was also declared
as legal guardian of Anubhav38.
62. It is immediately clarified that Sec. 6(a) of Hindu minority and guardianship act or for that
matter any other provision including those contained in the Guardians and Wards Act, does
not disqualify the mother to custody of the child even after the latter’s crossing the age of
five years, Roxann Sharma v. Arun Sharma39.
63. While taking a decision regarding custody or other issues pertaining to a child, “welfare
of the child” is of paramount consideration, Sheoli Hati v. Somnath Das40. Hence it is
humbly submitted that Anubhav’s best interests and welfare would be protected only when
he in the custody of his mother.

2.4.1 Custody based on welfare of child:

64. Custody of Anubhav rests with Mrs. Divya as per sec. 13 of Hindu minority and
guardianship act, which says that in the appointment of declaration of any person as
guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount
consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions
of this Act or of any law relating to guardianship in marriage among Hindus, if the court
is of opinion that his or her guardianship will not be for the welfare of the minor.
65. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka41, this Court reiterated that
the only consideration of the court in deciding the question of custody of a minor should
be the welfare and interest of the minor

37
E. Coleman, A.E. Radix, W.P. Bouman, G.R. Brown, A.L.C. de Vries, M.B. Deutsch, et al. Standards of care
for the health of transgender and gender diverse people (2022)
38
Moot Proposition point 21
39
Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318
40
Sheoli Hati v. Somnath Das, (2019) 7 SCC 490
41
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka 1982 2 SCC 544

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66. It is not the welfare of the father, nor the welfare of the mother, that is the paramount
consideration for the court. It is the welfare of the minor and of the minor alone which is
the paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad42. Here
Dad was totally against the wishes of the child, thus acting cruel towards the child.
67. A negative approach adopted by any parent is a significant factor weighing against him/her
while considering grant of custody of the child by the court, Vivek Singh v. Romani
Singh43. In considering the question of welfare of minor, due regard has, of course, to be
given to the right of the father as natural guardian but if the custody of the father cannot
promote the welfare of the children, he may be refused such guardianship, Rosy Jacob v.
Jacob A. Chakramakkal44.
68. In Gaurav Nagpal v. Sumedha Nagpal45, the hon’ble SC granted custody to mother based
on Sec. 13 of Hindu minority and guardianship act. The Supreme Court granted the custody
of the child to the mother, stating that the welfare of the child should be of paramount
consideration. The other orders that were passed by the court included: Both the legal and
the human angles should be looked at before deciding custody of the children. Minor’s
moral and ethical welfare is important for the children.
69. Sec. 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the
natural guardian of a minor son. But that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of the minor, Surinder Kaur Sandhu
v. Harbax Singh Sandhu46.
70. Also art. 3 of CRC states that, in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration.
71. Thus it is humbly submitted before the hon’ble supreme court that Anubhav’s custody with
Mrs. Divya adds to the best interests and welfare of the child and hence grant custody to
Mrs. Divya Seth, the respondent.

2.5 Referencing the UDHR Mandates on Children’s Welfare:

42
Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77
43
Vivek Singh v. Romani Singh, (2017) 3 SCC 231
44
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
45
Gaurav Nagpal v Sumedha Nagpal, AIR 2009 SC 557
46
Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698

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72. It is contended before this Hon’ble S.C that the decision-making capabilities of a child are
further supported by the Universal Declaration of Human Rights Mandates on Children’s
Welfare.

73. Article 1 of the Universal Declaration of Human Rights Mandates on Children’s Welfare
states that for the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the child, majority is
attained earlier. Article 3 states that, in all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration.
Furthermore, Article 12 states that parties shall assure to the child who is capable of forming
his or her own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age and maturity
of the child.

74. Therefore, it is submitted before this Hon’ble S.C that as Anubhav is capable of forming
their own views, the said views should be given its due weightage.

3. Whether the actions of Mr. Sanjay not supporting Anubhav in his decision to undergo
gender reassignment surgery can be termed as acting against the welfare of the child?

75. In a matrimonial life, the parents should be responsible for their child’s development. Both
parents should assume equal responsibility in raising a child to ensure a healthy and happy
childhood. This equal partnership promotes better communication between parents. It
reduces stress and burnout and contributes to the child’s overall emotional health and well-
being. In this case Mr. Sanjay didn't act of being supportive with his child’s and partner’s
decision.
76. In Tejaswinin Gaud and ors. V. Shekhar47, the hon’ble court placed reliance on veena
Kapoor Dr (Mrs) v. Varinder Kumar Kapoor Shri48 and Sarita sharma v sushil sharma49
, held that the welfare of children requires a full and thorough inquiry.

3.1 Mental health consideration of Anubhav was not valued by the appellant.

47
Tejaswini Gaud and Others. Vs. Shekhar Jagdish Prasad Tewari and Others reported in. (2019) 7 SCC 42.
48
veena Kapoor Dr (Mrs) v. Varinder Kumar Kapoor Shri (1981) 3 SCC 92
49
Sarita sharma v sushil sharma (2000) 3 SCC 14

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77. Anubhav was seriously affected by the consistent bullying by his classmates. The boys used
to beat him, pull his pants down and call him all kinds of slang. Even the girls used to tease
him by saying that he was one of them50. These actions affected Anubhav's mental health.
But Mr.Sanjay did not consider his son’s situation and did not support his decision. In
Kirtikumar Maheshankar Joshi v Pradipkumar Karunashanker Joshi, 51 and Nil Ratan
Kundu and anr v Abhijit52, the SC denied custody to the father.
78. In the case Deepak Soni v. Anamika53, the single-judge bench stated that when compared
to the child’s rights to dignity and parentage, the anguish of winning or losing a divorce
battle among the disputing spouses is incredibly insignificant and therefore utmost priority
is to be given to the mental and physical health of the child.
79. Maternal and paternal acceptance is a crucial component of the attachment and social-
emotional development of adolescents. When a child perceives that their parent is rejecting
or neglectful, it can lead to feelings of low self-worth, helplessness, and hopelessness.
These negative emotions can persist into adulthood, contributing to the onset and
persistence of depression. There are also positive relationships between parents’ rejection
and self-injury.
80. Chronic rejection in childhood may lead to mental disorders, such as developmental trauma
disorder or complex posttraumatic stress disorder (C-PTSD). These conditions are
characterized by persistent anxiety, difficulty regulating emotions, dissociation, and a
distorted sense of self and relationships.

3.1.1 Rejection of child’s decision will affect their mental health

81. Parental rejection may show in physical distancing. It can also be emotional like a lack of
comforting, encouragement, sympathy, empathy, or emotional availability. The effects of
rejection in childhood may manifest in the short and long run and can affect your
personality development. They can lead to both physical and emotional pain.
82. Not Being supportive of their decision will lead them in a wrong direction. Whether
intentional or not, the effects of rejection in childhood may include fear of intimacy,
distrust, anxiety and depression, and people-pleasing behaviours. Feelings of confusion and

50
Moot proposition point 2 and 3
51
Kirtikumar Maheshankar Joshi v Pradipkumar Karunashanker Joshi,(1992) 3 SCC 573
52
Nil Ratan Kundu and anr v Abhijit(2008) 9 SCC 413
53
Deepak Soni v. Anamika (2023) RJJD 016587

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emotional pain from rejection may lead to attachment challenges, ineffective coping
mechanisms, or an overall sense of loneliness.
83. In the case NALSA v. union of India it is said that Seldom, our society realizes or cares to
realize the trauma, agony and pain which the members of Transgender community undergo,
nor appreciates the innate feelings of the members of the Transgender community,
especially of those whose mind and body disown their biological sex.
84. In the case Navtej Singh Johar & Ors. v. Union Of India, it is stated that Even in Britain,
gay people are at greater risk of a range of mental health problems, and, it is believed, are
more likely to take their own lives.

3.1.2 mental health trauma leads to take suicidal decisions

85. The exact prevalence of completed suicide among transgender persons remain
undocumented; the gender-based discrimination has prevented them by obtaining
education, livelihood, and housing because of which they are living in slums and have to
resort to begging and sex work; this pitiful conditions lead them to breakdown further and
end their life in suicide. The high prevalence of depression and suicidal tendencies among
transgender persons seems to be highly influenced by societal stigma and lack of social
support.
86. In the case Jayalakshmi v. State Of Tamil Nadu54, Secretary To Government, Public
Department, Chennai Another, The Police belonging to P-3 Vyasarpadi Police Station
committed sexual assault on Pandian to such an extent and unable to bear the same, he
committed suicide by pouring kerosene over him.

3.2 Struggles of gender dysphoria

87. The rights and experiences of transgender people have been very much in the news over
the last several years. But parents of kids who raise questions about their gender or come
out as transgender may still find themselves at a loss for what to do next.
88. Kids who question or want to change their gender usually do so because they are
experiencing severe distress that they associate with the gender they were assigned at birth.
“They know something is not right and it’s felt this way for a long time,” explains Emma
Woodward, PhD, a clinical psychologist at the Child Mind Institute.

54
Jayalakshmi v. State Of Tamil Nadu (2007) 4 MLJ 849

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89. They are usually struggling to understand and alleviate that distress. “It’s rare that kids just
say one day, ‘I was born female and I don’t identify as that, I identify as a male and that’s
what I want to be,’ “ says Dr. Woodward. “Usually it’s much more confusing for the child
and family.”
90. Many children will be diagnosed with anxiety or depression while struggling through
gender-dysphoria. In this case, Anubhav might have a risk of anxiety or depression due to
rejection of his decision by his own father.
91. In a historic decision rendered by the 9-Judge Constitution Bench of the Supreme Court in
K.S. Puttaswamy (Privacy-9J.) v. Union of India, addressed the issue of rights of the
LGBTQ+ community and stated that the guarantee of constitutional rights does not depend
upon their exercise being favourably regarded by majoritarian opinion: “Discrimination
against an individual on the basis of sexual orientation is deeply offensive to the dignity
and self-worth of the individual. Equality demands that the sexual orientation of each
individual in society must be protected on an even platform. The right to privacy and the
protection of sexual orientation lie at the core of the fundamental rights guaranteed by
Articles 14, 15 and 21 of the Constitution.”

3.3. Parents should respect the bodily autonomy and self determination of gender identity
by the child.

92. Whether children have the right to give independent consent to medical treatment depends
on legal regulations of individual countries. However, regardless of domestic consent
regulations, all countries that have ratified the UNCRC, according to which, state must
allow children to be heard and be involved in decision-making regarding their health (art.
12 of CRC). Through the right to be heard the child realizes his/her autonomy. As such,
participation in decision-making is a wider concept than consent (the conceptual difference
between participation and consent is often undeservedly neglected) and is better suited for
exploring exercise of child’s autonomy in a triadic relationship.

3.3.1 Emphasizing the importance of respecting child's autonomy and self determination

93. Autonomy is usually considered as a main principle in making decisions about individuals’
health. Children and particularly adolescents have the capacity to take part in medical
decision-making to some extent.
94. In guidelines offered in medical ethics literature there are restrictions on the scope of
autonomy of adult patients in medical decision-making, for instance a patient’s wish to

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commit suicide is invalid; likewise, multiple restrictions apply to the autonomy of parents
regarding their children. For example, in most countries people have the right to refuse life-
saving treatments, while no one is granted this same right regarding their children.
Similarly, parents cannot refuse their children life-sustaining treatments on account of their
own religious beliefs. Parents are morally obliged to make medical decisions based on their
children’s best interests, not their own wishes and well-being, and if the physician decides
that their decision is not in the best interests of the child, a reliable authority, that is, the
court or ethical committee, can preserve the child’s rights in an unbiased manner.
95. In the case Anuj Garg v. Hotel Assn. of India, it is said that self-determination of gender
is an integral part of personal autonomy and self expression and falls within the realm of
personal liberty guaranteed under article of the constitution of India.
96. In the case x v. the principal secretary health and family welfare department govt. Of
NCT of Delhi 55, it is said that the right to dignity encapsulates the right of every individual
to be treated as a self governing entity having intrinsic value. it means that every human
being possesses dignity merely by being a human and can make self- defining and self-
determination choices. Dignity has been recognized as a core component of right to life
and liberty under article 21.

1.4 Child's statement before the family court,lucknow.

97. In custody suit, statement of Anubhav was recorded before the court in which he stated
that his father was a very nice person and he always fulfilled all of his demands. He never
acted cruelly with him. However, his father didn’t support him and his mother in their
decision of gender reassignment surgery. He further stated that he wants to live with both
of his parents.56
98. In vikram vir vohra v. shalini bhalla. 57, Bimla Devi v Subhas Chandra Yadav ‘Nirla’58 ,
Kama Devi v State of H.P 59and Goverdhan lal v Gajendra Kumar60, the court held that
the paramount consideration should be welfare of the minor and not the legal right.

55
x v. the principal secretary health and family welfare department govt. Of NCT of Delhi SLP (C) No 12612 of
2022
56
Moot proposition point 18
57
vikram vir vohra v. shalini bhalla. (2010) 4 SCC 409
58
Bimla Devi v Subhas Chandra Yadav ‘Nirla’ AIR 1992 Pat 76
59
Kama Devi v State of H.P AIR 1987 HP 34
60
Goverdhan lal v Gajendra Kumar AIR 2002 Raj 148

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99. In the case, Mamta v. Ashok Jagannath Bharuka61, The court said that, Before deciding
upon custody, the Court must: Take into account the wishes of the child concerned, and
Assess the psychological impact, if any, on the change in custody after obtaining the
opinion of a child psychiatrist or a child welfare worker.
100. In the case Saraswatibai shripad v. shripad vasati, AIR 1941 Bom 103 62, it is said that
an authority for the view that the paramount consideration in the matter of custody of a
minor of tender years is the interest of the child rather than the rights of the parents.
101. In the case Bhagyalakshmi v. K Narayana Rao63: where before passing the judgement
the judge had taken into consideration the joint-custody then the child would have got both
the love and affection of mother and material welfare from father.
102. All this must be done in addition to ascertaining the comparative material welfare that
the child/children may enjoy with either parent. In the case Wye Valley NHS Trust v B64.
103. Thus it is humbly submitted that the actions of Mr. Sanjay not supporting Anubhav in
his decision to undergo gender reassignment surgery amounts to acting against the welfare
of the child.

PRAYER

61
Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452
62
Saraswatibai shripad v. shripad vasati, AIR 1941 Bom 103
63
Bhagyalakshmi v. K Narayana Rao AIR 1983 Mad 9
64
Wye Valley NHS Trust v B [2015] EWCOP 60

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Therefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed that this Hon’ble court be pleased to declare that:

1. The decision made by 11-year-old Anubhav upon his Gender reassignment

surgery is valid
2. The acts of Mrs. Divya Seth does not amount to cruelty towards Mr. Sanjay.
3. The custody of Anubhav is with Mrs. Divya Seth, considering the welfare and
best interests of the child,

And may grant such other relief as the Court may deem fit in the light of justice, equity, and
good conscience.

AND FOR THIS ACT OF KINDNESS THE RESPONDENTS SHALL DUTY BOUND
FOREVER PRAY.

Respectfully Submitted

S/D________________

(Counsel for Respondents

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