DL-198

SAMAR KUMAR BASU NATIONALI

MOOT COURT COMPETITION-2023

BEFORE

THE SUPREME COURT OF INDIA

CIVIL APPEAL NO. OF 2023

(Under Article 136 of Constitution of India, 1950 r/w Section 109 of the Civil
Procedure Code)

IN THE MATTER OF:

MR. SANJAY BEHTA …APPELLANT

V.

MRS. DIVYA SETH ...RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGES OF SUPREME COURT

OF

INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBERVIATION....................................................................................................3

INDEX OF AUTHORITIES...................................................................................................4

I. CASES...........................................................................................................................4

II. STATUTES...................................................................................................................4

III. BOOKS.........................................................................................................................5

STATEMENT OF JURISDCITION......................................................................................6

STATEMENT OF FACTS......................................................................................................7

STATEMENT OF ISSUES...................................................................................................10

SUMMARY OF ARGUMENTS...........................................................................................11

ARGUMENTS ADVANCED................................................................................................13

PRAYER.................................................................................................................................26

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LIST OF ABBREVIATIONS

Abbreviations Full Forms

& And
¶ Paragraph
AIR All India Reporter
Anr. Another
Hon’ble Honourable
Etc. Etcetra
Ed. Edition
E.g. Exemplis gratia (Latin)
i.e Id est(Latin)
Ibid. Same as immediately above
L.R Law report
No. Number
Rep. Representative
SC Supreme Court
SCC Supreme Court Cases
Supra Mentioned before
U/ Under
V. Versus

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INDEX OF AUTHORITIES

I. CASES

1. Gaurav Nagpal v. Sumedha Nagpal, AIR 2008 SC 5099

2. Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 10 SCC 1

3. NALSA v. Union of India 2014 SC 1863

4. Veera Yadav v. The Chief Secretary, Government of Bihar, AIR 2022 HCC 5627

5. Yeluguri Andalu v. Maragoni Sandeep Goud, AIR 2023

6. Amit Singh v. State of U.P. And Anr., AIR 2022

7. Rosy Jacob v. A Chakramakkal, AIR 1973

8. Gayatri Bajaj v. Jiten Bhalla, AIR 2013 SC 102

9. Ritika Sharan vs Sujoy Ghosh, AIR 2020

10. Gillick v and Wisbech Area Health Authority, AIR 1986 AC 112

II. STATUTES

1. Constitution of India, 1950

2. Code of Civil Procedure, 1908

3. Convention on Rights of Children (UNICEF)

4. National Commission for Protection of Child Rights (NCPCR)

5. State Commission for Protection of Child Rights (SCPCR)

6. Juvenile Justice Act (talks about definition of "child" etc)

7. The Transgender Persons (Protection of Rights) Act, 2019

8. National Council for Transgender People

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IV. BOOKS

1. VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA, FROM

WELFARE TO RIGHTS, (Oxford University Press, 2022)

2. B.M. GANDHI, HINDU LAW, (Eastern Book Company, 2015)

3. MAMTA RAO, LAWS RELATING TO WOMEN AND CHILDREN, (Eastern

Book Company, 2012)

4. DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, (Central Law Agency,

2022)

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STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of Trentland under Art. 136 of the
Constitution of India, 1950.

Art. 136 states that “Special leave to appeal by the Supreme Court.

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”

S. 109 of the Civil Procedure Code, 1908, states the procedure for cases “When appeal lies to
the Supreme Court” which is applicable in the present case.

The Appellant humbly submits to the jurisdiction of the Hon’ble Supreme Court of Trentland.

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STATEMENT OF FACTS

 Parties to the Dispute:

- Mrs. Divya Seth: An Indian lawyer and activist for the LGBT+ community. She is
married to Mr. Sanjay Behta.

- Mr. Sanjay Behta: A lawyer with traditional and orthodox thoughts, married to
Mrs. Divya Seth.

- Anubhav Seth (now a girl): The couple's biological child, who experiences gender
dysphoria and wishes to undergo gender reassignment surgery.

 Background:

- Mrs. Divya Seth and Mr. Sanjay Behta are lawyers practicing in the Allahabad
High Court, Lucknow Bench.

- Despite their opposing views, the couple maintained a harmonious marital life.

 Cause of Action:

- Anubhav Seth, the couple's son, faced bullying and harassment at school due to
his nonconforming gender identity.

- Anubhav expressed a preference for traditionally feminine activities and felt more
comfortable in the company of girls.

 Dispute:

- Mrs. Divya Seth believed that Anubhav was a woman trapped in a man's body and
supported his gender identity.

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- Mr. Sanjay Behta was concerned about Anubhav's well-being and suggested
taking him to a psychologist to explore any potential psychological disorder.

- A psychologist diagnosed Anubhav with gender dysphoria and recommended

early treatment, including hormone therapy and counseling.

- Mrs. Divya Seth disagreed with pursuing medical treatment for Anubhav and
accused Mr. Sanjay Behta of being homophobic.

 Outcome:

- Mrs. Divya Seth, fully supportive of Anubhav's gender identity, decided to

proceed with gender reassignment surgery against Mr. Sanjay Behta's objections.

- Anubhav underwent a successful gender reassignment surgery and transitioned

into a girl.

- The couple had an intense argument, resulting in Mr. Sanjay Behta slapping Mrs.
Divya Seth.

- Mrs. Divya Seth left their matrimonial home with Anubhav and sought refuge at
her father's house.

 The Suit:

- Mr. Sanjay Behta filed a petition for divorce on grounds of cruelty, along with a
petition for custody and guardianship of Anubhav.

- Mrs. Divya Seth contested all the petitions, asserting her support for Anubhav's
decision and claiming the exclusive right to make decisions for her child.

- The family court granted divorce to Mr. Sanjay Behta on the grounds of cruelty
and awarded custody and guardianship of Anubhav to him, deeming it in the
child's best interest.

- Mrs. Divya Seth appealed the family court's judgment to the Allahabad High
Court, Lucknow bench.

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- The High Court set aside the family court's judgment, stating that supporting
Anubhav's decision did not constitute cruelty. It held that determining one's
gender identity was essential to the child's welfare and declared Mrs. Divya Seth
as Anubhav's legal guardian.

- Dissatisfied with the High Court's decision, Mr. Sanjay Behta filed an appeal
before the Supreme Court.

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STATEMENT OF ISSUES

Issue 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?

Issue II.
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?

Issue III.
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?

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SUMMARY OF ARGUMENTS

I. 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?

The Respondent humbly submits before the Hon'ble Court that a child of tender age
of 11 years can make decisions concerning their own welfare, particularly in complex
matters of gender identity, based on the principles of evolving capacity and informed
decision-making. The principle of autonomy dictates that individuals have the right to
make decisions about their own lives, particularly regarding matters as personal as
one's gender identity. Anubhav’s emotional well-being and psychological health are
of paramount importance. The bullying and harassment he endured at school caused
significant distress and affected his mental state. Mrs. Seth's support and acceptance
of Anubhav's gender identity provide him with a sense of security, acceptance, and
affirmation, which are crucial for his emotional well-being. In conclusion, Mrs. Divya
Seth's support for her child's decision regarding gender reassignment surgery is an
expression of respect for autonomy, recognition of medical expertise, and
prioritization of the child's well-being. Upholding the judgment and order of the High
Court is not only legally justified but also aligns with the principles of justice,
equality, and the best interest of the child.

II. 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?

It is humbly submitted that the actions of Mrs. Divya Seth supporting and taking
Anubhav for his gender reassignment surgery without consent of Mr. Sanjay does not
amount to cruelty and action against the welfare of child because she was a
responsible parent, she just tried to understand the inner feelings of her son rather than
treating him unfortunate. Parents have the inherent responsibility and authority to
make decisions in the best interests of their child. It is the duty of parents to protect
and guide their children. The surgery was the need of the hour for saving Anubhav

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from mental trauma from which he was dealing since very long. A mother will always
want the best for their children, and it is petty to see that the mother is being
questioned who just wanted the happiness of her son and supported his decision by
going against the entire world.

III. 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?

It is humbly submitted before this Hon’ble Court that 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.

Further, as laid down by the High Court in its judgement dated 06.04.2022, the right
to determine one’s own gender is an essential part of the welfare of a child.If issues
relating to gender identity are not resolved, they may deteriorate an individual’s
mental health even further. The wellbeing of the child has to be looked into from
several perspectives. If the father is able to take care of the child that alone cannot be
the consideration. Lastly, it is concluded that what Anubhav was feeling was not a
mere "phase" and his constant trouble at school was a clear indication of his
troublesome life.

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ARGUMENTS ADVANCED

[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?

1. The Respondent humbly submits before the Hon'ble Court that a child of tender age of
11 years can make decisions concerning their own welfare, particularly in complex
matters of gender identity, based on the principles of evolving capacity and informed
decision-making. Anubhav's maturity and understanding, as well as the expert
evaluation by professionals like Dr. Aditya Shrivastava, confirm that his decision to
undergo gender reassignment surgery is a thoughtful and considered choice that should
be respected and upheld by the court.

2. The principle of autonomy dictates that individuals have the right to make decisions
about their own lives, particularly regarding matters as personal as one's gender identity.
Anubhav, despite his young age, has expressed a consistent and genuine desire to
undergo gender reassignment surgery. Mrs. Seth's support for her child's decision is an
affirmation of his autonomy and should be respected. Adults have the right to decide
what their best interests are and to have their choices respected.

3. It is crucial to acknowledge that Anubhav has been diagnosed with gender dysphoria by
a qualified psychologist, Dr. Aditya Shrivastava. Gender dysphoria is a recognized
medical condition in which an individual's gender identity does not align with their
assigned sex at birth. The medical professional recommended hormone therapy and
counseling as a part of Anubhav's treatment. By supporting her child's medical needs,
Mrs. Seth is acting in his best interest.

4. Anubhav's emotional well-being and psychological health are of paramount importance.

The bullying and harassment he endured at school caused significant distress and
affected his mental state. Mrs. Seth's support and acceptance of Anubhav's gender

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identity provide him with a sense of security, acceptance, and affirmation, which are
crucial for his emotional well-being.

5. The welfare of the child is the primary consideration in custody and guardianship
matters. Mrs. Seth has consistently shown her unwavering support for Anubhav,
ensuring his happiness and emotional stability. The High Court rightly recognized that
her actions are in the best interest of the child, as she understands and respects his
unique needs. The paramount consideration in any custody and guardianship dispute is
the welfare and best interest of the child. It is essential to recognize that Anubhav's well-
being should be the focal point of this case. Anubhav's gender dysphoria and desire for
gender reassignment surgery should be seen as a legitimate concern for his mental and
emotional health. Mrs. Seth's support for her child's decision and her role in arranging
the surgery demonstrate her commitment to ensuring Anubhav's welfare.

6. The principle of the best interest of the child is well-established in Indian jurisprudence.
In numerous cases, such as Gaurav Nagpal v. Sumedha Nagpal1, the courts have
emphasised that the well-being and welfare of the child must be the primary
consideration in custody and guardianship matters.

7. Mrs. Seth's activism for the LGBT+ community highlights her commitment to
promoting equality and inclusivity. Upholding her role as Anubhav's legal guardian will
send a powerful message about acceptance and understanding of diverse gender
identities, furthering the cause of progressiveness in our society.

8. Anubhav, at the age of 11, is capable of understanding his own feelings and making
decisions about his own gender identity. The right to self-determination is a
fundamental aspect of personal autonomy. By acknowledging and respecting Anubhav's
gender identity, Mrs. Seth has shown that she values his autonomy and recognizes his
ability to make decisions that affect his own life.

1
AIR 2008 SC 5099

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9. Mrs. Seth's support for her child's gender reassignment surgery is in line with the
principles of non-discrimination and equality. It is crucial to protect individuals from
discrimination based on their gender identity. Anubhav's experiences of bullying and
mistreatment at school highlight the need for acceptance and understanding. By
embracing Anubhav's identity and providing necessary medical care, Mrs. Seth is
advocating for equal treatment and protection of her child's rights.

10. All children have all these rights, no matter who they are, where they live, what
language they speak, what their religion is, what they think, what they look like, if they
are a boy or girl, if they have a disability, if they are rich or poor, and no matter who
their parents or families are or what their parents or families believe or do. No child
should be treated unfairly for any reason.

11. Parental support of sexual orientation and gender expression provide uniquely strong
benefits to positive well-being and mental health in young adulthood and are related to
higher levels of self-esteem and lower levels of depression, suicidal ideation, and
suicide attempts.

12. In a 2021 survey of nearly 35,000 LGBTQ+ youth, 75 percent reported having
experienced discrimination based on their sexual orientation or gender identity at least
once in their lifetime. These negative experiences include high rates of physical and
emotional bias and violence; rejection by schools, employment, and communities
because of their sexual orientation and/or gender identity/expression.

13. Research shows that due to these challenges and the associated stress, LGBTQ+ youth
are at risk for negative health outcomes and are more likely to attempt suicide,
experience homelessness, and use illegal drugs. These issues may also contribute to
anxiety, depressive symptoms, and feelings of isolation.

14. Gender dysphoria is a recognized medical condition, and appropriate treatment,

including hormone therapy and counselling, is recommended to alleviate its effects. Dr.

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Aditya Shrivastava, a renowned psychologist, confirmed the diagnosis and the necessity
of early intervention. Mrs. Seth's decision to pursue medical treatment for Anubhav's
condition is rooted in her concern for his psychological well-being, and it aligns with
professional medical advice.

15. While both parents have a right to participate in decision-making regarding their child,
Mrs. Seth's decision to support Anubhav's gender reassignment surgery is not an
arbitrary or reckless choice. It is based on a comprehensive understanding of her child's
needs and a genuine belief in what is best for Anubhav. It is important to recognize that
parents can have differing opinions and beliefs, but the ultimate goal should be the well-
being of the child.

16. Gender reassignment surgery is an effective treatment for all who suffer from gender
dysphoria, this includes minors as well. Early realisation and treatment of gender
dysphoria has many benefits. It leads to better mental health, reduced depression,
anxiety and distress related to gender dysphoria.Gender transition for minors has been
associated with greater satisfaction and better quality of life.

17. The overall happiness and success rates of gender reassignment surgery for minors are
relatively high. According to research in the Journal of Sexual Medicine, 96% of a
group of transgender teenagers who received gender-affirming surgery were happy with
the outcomes.

18. Another research published in the Journal of Adolescent Health showed that transgender
young people who received gender change surgery had better mental health, including
less sadness and anxiety.

19. The Supreme Court of India, in the case of Justice K.S. Puttaswamy (Retd.) v. Union of
India, 2 recognized the right to privacy as a fundamental right under the Indian

2
AIR 2017 10 SCC 1

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Constitution. This right encompasses personal autonomy and includes decisions about
one's own body and identity.

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20. The Supreme Court in the landmark judgment of NALSA v. Union of India ,
recognised the rights of transgender as the third gender. The Court while addressing
their problems directed the Centre and State governments to treat them as socially and
educationally backward classes and extend all kinds of reservations for their education
and employment. The Court held that individuals have the right to self-identification of
their sexual orientation even without medical intervention and allow them to choose
their gender following the sex reassignment surgery.

21. “Good parenting involves giving minors as much rope as they can handle without an
unacceptable risk that they will hang themselves” Lord Donaldson in Re W [1992] 4
All ER 627-633

22. In conclusion, Mrs. Divya Seth's support for her child's decision regarding gender
reassignment surgery is an expression of respect for autonomy, recognition of medical
expertise, and prioritisation of the child's well-being. Upholding the judgment and order
of the High Court is not only legally justified but also aligns with the principles of
justice, equality, and the best interest of the child. By presenting these arguments and
referencing relevant case laws, I aim to support the position that Mrs. Divya Seth's
actions were in the best interest of her child and should be upheld by the court.

3
AIR 2014 SC 1863

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[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?

1. It is humbly submitted that the actions of Mrs. Divya Seth supporting and taking
Anubhav for his gender reassignment surgery without consent of Mr. Sanjay does not
amount to cruelty and action against the welfare of child because she was a responsible
parent, she just tried to understand the inner feelings of her son rather than treating him
unfortunate.

2. Parents have the inherent responsibility and authority to make decisions in the best
interests of their child. It is the duty of parents to protect and guide their children. The
surgery was the need of the hour for saving Anubhav from mental trauma from which
he was dealing since very long.

3. Further, Mrs Divya was a lawyer who was an outspoken person, and she was a famous
lawyer who was very well aware of her rights being a mother, her intention was just to
support her child irrespective of the thoughts of her orthodox husband. She tried to
help her son understand his feelings and get clarity about his thoughts. She is an open -
minded mother who chooses her son’s happiness and gives consent for the sex change
surgery. The decision of surgery was of Anubhav’s and Mrs Divya supported his
decision as she was a proud mother and always told her son that there’s nothing wrong
if he feels that he is a woman or if he identifies as a woman.

4. Children under the age of 16 can consent to their own treatment if they’re believed to
have enough intelligence, competence and understanding to fully appreciate what’s
involved in their treatment. This is known as being Gillick 4 competent, Otherwise,
someone with parental responsibility can consent for them. This could be:
 The child’s mother or father
 The child’s legally appointed guardian

4
Gillick v and Wisbech Area Health Authority, AIR 1986 AC 112

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 A person with a residence order concerning the child

 A local authority designated to care for the child
 A local authority or person with an emergency protection order for the child Parental
responsibility
 A person with parental responsibility must have the capacity to give consent.

5. By law, healthcare professionals only need 1 person with parental responsibility to

give consent for them to provide treatment. Thus, the consent of Mrs Divya is enough
for the gender reassignment surgery of Anubhav and the need of consent of Mr Sanjay
does not amount to cruelty on the part of Mrs Divya.

6. Cruelty under Section 13(1) (ia) of the Hindu Marriage Act talks about the behaviour
of one spouse towards the other which results in a reasonable apprehension in the mind
of the latter that it is not safe for him or her to continue to stay in the matrimonial
relationship anymore with the other. Mr. Sanjay is supposed to be blamed for physical
cruelty, he slapped Mrs. Divya after which she left her matrimonial home. Amit Singh
vs State of U.P. And Anr5.

7. Therefore, the judgement of family court was overruled by the High court, which
should be considered here as its decision would surely have more importance than that
of an inferior court. “The High Court held that supporting her son in his decision for
undergoing sex change operation does not amount to cruelty, and the right to
determine one’s own gender is an essential part of the welfare of a child and actions of
mother supporting his decision cannot be termed as Cruelty.”

8. Welfare of child –
“13. Welfare of minor to be paramount consideration. — (1) 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.”

5 AIR

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The minor’s welfare, according to the said provision should be evaluated in terms of
his Physical health, education, emotional fulfilment, moral and spiritual growth, as
well as any psychological damage that the young child would suffer as a result of
being separated from Any parent, among other things.

9. Further it is submitted that there are various instances in the factual matrix of the case,
which reflect the disapproval of Mr. Sanjay and how it is against the welfare of the
Child;
 Mr. Sanjay is a man of traditional and orthodox thoughts which are not conducive for
raising a child in present times, and especially a childlike Anubhav who is facing
complex issues.
 Mr. Sanjay treated Anubhav’s feeling like a woman trapped in a man’s body as a sign
of a psychological disorder meaning thereby he treated the child’s Plight as an issue or
as something ‘wrong’ with Anubhav, which impacts the Child’s mental health
negatively.
 Anubhav was suffering bullying constantly and Mr. Sanjay’s personal opinion Of it
being a mere ‘confusion’, if acted upon, would have meant an additional Trauma to
Anubhav for years to come until he reached a certain age of ‘maturity’.
 On 01.09.2019, Mr. Sanjay slapped Mrs. Divya Seth, which is scary and Negative to a
child’s mind.

10. In Gaurav Nagpal v. Sumedha the court held that the child's welfare is of the utmost
importance and everything is secondary. The court status that a child wishes,
happiness with the guardian, educational needs, health, physical comfort, are very
important to consider.

6
11. In the case of Rosy Jacob v. A Chakramakkal , the court held that paramount
consideration is the welfare of the child. Section 13 of The Hindu Minority and
Guardianship Act, provided that the welfare of minors to be of paramount
consideration.

6 AIR

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12. Gayatri Bajaj v. Jiten Bhalla 7, In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount
consideration. The word “welfare” includes not only the material and physical well-
being of the minor, but also every factor connected with the moral and religious
welfare, education and upbringing of the minor. In determining as to what will be for
the welfare of the minor, the court would have regard to, inter alia, the age, sex and
religion of the minor, the character and capacity of the guardian, his nearness of kin to
the minor, the wishes if any of the minor’s disease parent and the previous and existing
relation of the minor with the proposed guardian.

13. A three-judge bench of the Hon’ble Supreme Court in Ritika Sharan vs Sujoy Ghosh
8
reiterated that the welfare of the minor child is of paramount concern in matters
concerning custody of the child.

14. A mother is said to be the guardian of the child for as long as she lives. She can
enforce this right even if she changes her religion or if she has an adopted child. Thus,
Mr. Sanjay’s decision of not supporting Anubhav’s decision to undergo sex change
surgery is against the welfare of Anubhav because he was quite clear of his decision.
And in view of such a clear indication of steadfastness, his father should not have been
opposing Anubhav. It is evident that Mr. Sanjay favoured his personal view over the
best interest of his son.

15. Lastly, it is clear that Mrs. Divya was a responsible mother who tried her best to do
everything in the best interest of her son. Therefore, mother’s love is the purest form
of love. It cannot be compared with anything in this universe. A mother will always
want the best for their children, and it is petty to see that the mother is being
questioned who just wanted the happiness of her son and supported his decision by
going against the entire world. She stood with her son. It would be great if the court
keeps in mind the pure emotions behind the step taken by a mother for the welfare of
her son.

7
AIR 2013 SC 102
8
AIR

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[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?

1. It is humbly submitted before this Hon’ble Court that 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.

2. According to Section 13 of the Hindu Minority and Guardianship Act, 1956;

“13. Welfare of minor to be paramount consideration. —(1) 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.”

The minor's welfare, according to the said provision should be evaluated in terms of his
physical health, education, emotional fulfilment, moral and spiritual growth, as well as
any psychological damage that the young child would suffer as a result of being
separated from any parent, among other things.

3. It is submitted that a healthy environment which is not only protective but also
supportive of a child’s interests is essential for the overall development of a child. In
O.P.No.388 Of 2 v. Mrs.T.Chandravandhana, it was observed by the Court that, “The
crucial test for custody could be the ability on the part of either party to provide the
minor child with a healthy environment, good parental guidance, physical, mental and
financial support for the development of the child.”

4. Further, as laid down by the High Court in its judgement dated 06.04.2022, the right to
determine one’s own gender is an essential part of the welfare of a child. Gender
identity plays a big role in a person’s life and it's a sensitive issue that ought to be
handled with the utmost care.

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5. In the case of Veera Yadav v. The Chief Secretary, Government of Bihar 9 observed
that, “The recognition of one's gender identity lies at the heart of the fundamental right
to dignity. Gender, as already indicated, constitutes the core of one's sense of being as
well as an integral part of a person's identity. Legal recognition of gender identity is,
therefore, part of the right to dignity and freedom guaranteed under our Constitution.”

6. If issues relating to gender identity are not resolved, they may deteriorate an individual’s
mental health even further. According to The Report of the 2015 US Transgender
Survey (James, S., Herman, J., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. A.),
published in 2020, “Suicide rates among transgender people are markedly higher than
the general population.”

7. Further it is submitted that there are various instances in the factual matrix of the case,
which reflect the disapproval of Mr. Sanjay and how it is against the welfare of the
child;
 Mr. Sanjay is a man of traditional and orthodox thoughts which are not conducive for
raising a child in present times, and especially a childlike Anubhav who is facing
complex issues.
 Mr. Sanjay treated Anubhav’s feeling like a woman trapped in a man’s body as a sign of
a psychological disorder meaning thereby, he treated the child’s plight as an issue or as
something ‘wrong’ with Anubhav, which impacts the child’s mental health negatively.
 Anubhav was suffering bullying constantly and Mr. Sanjay’s personal opinion of it
being a mere ‘confusion’, if acted upon, would have meant an additional trauma to
Anubhav for years to come until he reached a certain age of ‘maturity’.
 On 01.09.2019, Mr. Sanjay slapped Mrs. Divya Seth, which is scary and negative to a
child’s mind.

8. Further, it is humbly submitted that Anubhav made it clear in his statement that his
father didn't support him and his mother in the decision of gender reassignment surgery,
showing how clear it was in front of Anubhav that only his mother was supportive of

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him. This rejection by Mr. Sanjay creates a feeling of seclusion in the mind of the child
and is not conducive for his emotional growth.

9. A child brings a picture of a miniature human being in our mind, dependent on adults
for guidance. But according to Carmichael, Yussen and Santrock in Child
Development - An Introduction (1978), "There is no standard point to judge the mental
maturity of a person. Physical and mental maturity are necessarily linked to social,
cultural and other considerations.”

10. Thus, Mr. Sanjay’s decision of not supporting Anubhav's decision to undergo sex
change surgery is against the welfare of Anubhav because he was quite clear of his
decision. And in view of such a clear indication of steadfastness, his father should not
have been opposing Anubhav. It is evident that Mr. Sanjay favoured his personal view
over the best interest of his son.

11. The Court in Yeluguri Andalu vs Maragoni Sandeep Goud 10stated that,”While dealing
with any of the issues pertaining to the child, the paramount consideration of the Court
is the welfare of the child. The wellbeing of the child has to be looked into from several
perspectives. If the father is able to take care of the child that alone cannot be the
consideration. A child will evolve into a complete person based on his / her experience,
the way she was taken care of by near and dear in life. Every child is entitled for a
happy childhood.”

12. Transgender children are suffering from deplorable conditions in India, and for this
reason alone, Anubhav requires the support of both of his parents. Trans children are
bullied from teachers, friends and even other family members and require a safe haven
at home.

13. In a survey of 900 transgender persons from Delhi and UP, conducted by the Kerala
Development Society for the National Human Rights Commission, only 20% had

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completed their primary school education. While the literacy rate of Delhi and UP is
55.8% and 62.99%, respectively, the survey found that only 15% of transgender persons
in Delhi and 10% in UP had completed their matriculation.

14. It is humbly submitted that in a PNAS study published November 2019, the largest ever
conducted on transgender children to date, researchers found no significant differences
between trans and cis kids' gender development, or how they grew to understand and
formulate their gender. The findings also revealed that transgender children gravitate
toward the same gendered toys, clothing items, and friends as cisgender kids, regardless
of how long they had been socially transitioned — or live as the gender they identify as.

15. Lastly, it is concluded that what Anubhav was feeling was not a mere "phase" and his
constant trouble at school was a clear indication of his troublesome life. He was
introduced to names like Caitlyn Jenner and he was inspired. In such a situation where
the child is steadfast on his decision to transition, it is the duty of both the parents to be
supportive of his decision, no matter if he finds incongruency in the gender he was born
as and the gender he wants to identify with. Mr. Sanjay was disapproving of Anubhav's
need to transition from the inception and this is heavily destructive to Anubhav's mental
health.

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PRAYER

THEREFORE, IT IS MOST HUMBLY AND RESPECTFULLY PRAYED THAT THIS

HONOURABLE SUPREME COURT MAY BE PLEASED TO ADJUDGE AND
DETERMINE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, AND
AUTHORITIES CITED. DECLARE THAT:

1. A child of a tender age of 11 years can take decisions upon his own welfare especially
when such a decision relates to complex issues of gender identity.

2. The actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery without consent of Mr. Sanjay does not amount to cruelty and
acting against the welfare of the child.

3. 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 a child.

4. There is no discrepancy in order of Hon'ble High Court dated 06.04.2022 and should be
maintained according to merits of the case.

AND PASS ANY OTHER ORDER THAT THIS HONORABLE SUPREME COURT MAY

DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY, AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND

FOREVER PRAY.

Counsel for Respondent

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