IN THE COURT OF DISTRICT JUDGE

DELHI

Interlocutory Application No ........... (2019)

In the matter of:

Raj Malhotra Petitioner

Versus

Shivani Malhotra Respondent

Interlocutory Application under Section 12 of Guardian and Wards

Act, 1980

Memorial on behalf of Respondent in Mock Trial

SUBMITTED BY:

Name of Student: Aayush Agarwal and Shivani Rautela

Class Roll No. – 173323 & 173331

L.L.B. V Semester, Section C

Campus Law Centre, University of Delhi 1

 INDEX

S. NO Topic Page number

1. Statement of facts 3
2. Opening Statement 4

3. Examination in Chief 5-7

4. Cross Examination 8-9

5. Closing Statement 10
6. Annexures 11-13

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 STATEMENT OF FACTS:

 Respondent is a British Citizen who was married to the petitioner. The two have two
children out of wedlock.
 The petitioner and the respondent settled for a mutual divorce under which the
respondent would get to keep the custody of children.
 Both the respondent and petitioner were responsible for the maintenance of the
children.
 The Petitioner and the respondent did not have a happy married life because of
compatibility issues which lead to frequent fights.
 After the divorce the respondent got into a relationship with Mr. Ajay Khanna.
 The respondent, kids and Ajay were happily living in London and the children were
quite comfortable and happy living there.
 On 3rd January the petitioner got to know that his father in New Delhi was
hospitalized and he had to urgently visit his father. Still he waited for 7 days just to
abduct the children and take them out from the lawful custody of the respondent and
left for India on 10th without applying for permission from the Court or informing the
mother of the children.
 This step was a blatant violation of the decree of the Court to which the Court took
cognizance of the matter and issued a warrant against him.
 Due to non-availability of the petitioner, the order of the Court could not be carried
out due to which the respondent applied for a visa and left for India as soon as
possible.
 The respondent after reaching India met her children. She found that the father was in
a perfectly health condition and the petitioner took away the children on a false
pretext.
 Respondent made aware the petitioner of the arrest warrant and demanded that the
children should be returned back to her.
 The petitioner with a malicious intention and out of fear filed for an ad-interim
restraint order against the respondent on her valid request to return the children.
 The petitioner seeks the complete custody of his children. Thus this present petition.

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OPENING STATEMENT

Your Honour, I, Shivani Rautela along with my co-counsel, Aayush Aggarwal, will be
representing our client, the respondent, Shivani Malhotra in the present matter. She has been
subjected to mental disturbance and legal injury by the acts of the petitioner who is also her
ex-husband.
Through the examination-in-chief and cross examination, we shall try to establish that how
the petitioner, Raj Malhotra while taking the two children out of the custody of our client
from United Kingdom to India has acted maliciously and dishonoured the decree passed by
the London Court which explicitly directed the party seeking to take the children out of UK
would have to apply for permission from the London Court which might grant the same on
the terms as to ensure the return of the children. Not abiding to which, complaint has been
made by our client and warrant of arrest against the petitioner on the ground of unlawful
taking and restraining the children outside UK has been issued.
It is to be further noted that in spite of the custodial rights with our client and nothing even
minutely contrary against her, the petitioner has taken advantage of his own wrong and
applied for custody and guardianship under Guardianship and Wards Acts, 1890 pleading
himself to be the natural guardian of the children and asserting on it the welfare of children
blaming inconsiderably on the respondent stating she has started to stay in a live-in
relationship with another man in London.
In addition, through various judgments of the Supreme Court, it has been clearly adjudged
that Indian courts do not have jurisdiction over the custody of such children and in the present
case, it is only the London Court that could pass requisite rules and regulations.

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EXAMINATION IN CHIEF

1. Please introduce yourself to the Court?

My name is Shivani Malhotra, I am 34 years of age and british citizen residing in

London.

2. So, Ms Shivani, who all are there in your family?

After my divorce my family constitutes my two children – my son Rohan aged 8

years and daughter Muskaan aged 6 years.

3. When did you split with your husband and what was the reason?

Differences had arisen between Raj and me due to incompatibility. The friction grew
particularly after the birth of the children and fed up with frequent arguments and
fights at home, we decided to get the marriage dissolved which happened on January
10th. We split after seven years of marriage.

4. As being claimed are you in a live-in-relationship with Mr. Ajay?

Yes, I am in a live-in relationship with Mr. Ajay who is also a divorcee.

5. Who is Mr. Ajay, please elaborate on his education and qualification?

Mr. Ajay Khanna is a british citizen, who hailed from Gujarat and currently is a
resident of London. He has a PHD in Astrophysics and is a professor at University of
London.

6. How did you meet Mr. Ajay and how is your relationship so far?

Mr. Ajay on account of being a family friend and sharing the same origin, have
known each other from our childhood days. We have been in a good link with each
other and shared a friendly bond before we came into a love relationship a year back
when we confessed our feelings for each other.

7. Did you consider the impact of your live-in-relationship on your children before
moving in with Mr. Ajay after the divorce?

Yes, I gave a deep thought and discussed the same with my parents and Ajay and
because of the fact that Ajay and my children were compatible with each other to the
highest level decided to move in with Ajay.

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8. Did you ever being a mother felt that witnessing your relationship with another
man would morally and emotionally affect the welfare of the children? Please
elaborate about it to us.

No, as already stated the level of compatibility my kids shared with Ajay made it
favourable. Moreover in a progressive society such as London, this concept is quite
prevalent being the second largest form of family. Moreover I keep a close check on
things that might affect my children adversely in any way.

9. Did you feel in any way that Raj before and after divorce was in any way
negligent towards the children?

No, I had no objection and we both mutually respected the timeline and the children
also never complained and was quite comfortable.

10. What did you do as soon as you came to know that Raj took your children away
without prior permission from you as well as the Court?

I reported the matter immediately and registered a complaint of the violation of the
Court’s decree. The London Court then issued a warrant of arrest against the
petitioner on ground of unlawful taking and restraining the children outside U.K.
Thereafter after my visa got approved, I immediately left for India.

11. How did Ajay reacted to this particular incident?

Mr. Ajay was very supportive. He accompanied me throughout, be it registering the

complaint or be it completing the visa formalities. He even offered to accompany me
to India for the cause.

12. How was the condition of the children when you met them in India? How did
they reacted to see you?

The condition of the children were good although they were missing me a lot. They
were really happy to see me.

13. Did you meet the parents of Raj at home? How was the condition of the father?

Yes I met the parent of Raj when I visited their home at India. Moreover it was Raj’s
father only that opened the door. He was in perfect condition.

14. Did you ask Raj to return the custody of the children to you?

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 Upon meeting the children at Raj’s home, I demanded Raj to return the custody of the
children back to me. I also tried to reason with him and also told about his pending
warrant being issued by London Court.

15. For how many days are you in India?

Being a working lady, I have to join back my work of place in a week. Also my visa
to India will be expired in a week.

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QUESTIONS FOR CROSS EXAMINATION

ESTABLISHING – PENAL OFFENCE OF KINDAPPING ON HIS OWN VOLITION

1. Mr Raj, is it not true that you are an MBA graduate from a reputed University?
2. Being such an education member of this society and being well versed with the terms
of divorce which you yourself consented to, still you violated the terms of Divorce?
Why?
3. Do you know that your action is a penal offence of kidnapping?

ESTABLISHING – TIMELINE OF EVENT TO PROVE THE ACTIONS OF

PETITONER AS DISHONEST
4. What were those circumstances that led you to take such an action?
5. When did your father got ill?
6. What was his condition at that point?
7. When did you reach India with your children?
8. If you were there for 7 days, why did you not applied for permission from London
Court?
9. Don’t you think it was your malicious Intent, due to which your date of departure
coincide with the date when you got the custody of the children?

ESTABLISHING – REASONS ADDUCED WERE MALICIOUS

10. Where were your children born?
11. From how many years the children are living in London?
12. Were they not U.K. citizens?
13. Were they not happy and healthy when they lived there?
14. Why did you admitted the children to the school when they were there for only a
limited time?
15. Was it not cruel on your part to remove children from the rightful guardianship of the
mother?

ESTABLISHING CHARACTER OF THE PETITIONER

16. What are the birthdates of the children?
17. Was there any plans of yours to return to London?
18. Don’t you think that at this tender age the children will miss their mother?
19. Don’t you think you took a unilateral decision of leaving London for good when you
have a very good option of staying there and it was wrong on your part?
20. Will it not be nearly impossible for the mother to come to India every week according
to you?
21. Are you aware that an arrest warrant is outstanding against you in London?
22. Is such conduct acceptable being an absconder from the legal justice system?
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ESTABLISHING PETITONER IS NOT IN A POSITION TO SUPPORT THE
CHILDREN
23. What do you do in Delhi and what is your income?
24. Do you think being the sole earner with ailing parents it will be feasible and sufficient
to take good care of the children?
25. Don’t you think you are over burdening your parents by putting additional
responsibilities of children onto them?

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CLOSING STATEMENT

It is most humbly submitted before this Hon’ble Court that in light of the Examination-in-
chief and cross examination of the petitioner and respondent respectively and the evidences
adduced, the following emerges:
Firstly, as per the judgement of Supreme Court of India in Dhanwanti Joshi v. Madhav Unde
it has been adjudged that as per the Hague Convention of 1980 on Civil aspects of
International Child Abduction, any child who had been removed has to be returned to the
country of removal. In case of non-signatory countries it is the welfare of the child which will
be of paramount importance which will be decided by the Court to which the child is
removed from. Thus it can be concluded that this Court does not have jurisdiction to decide
this case.
Secondly, the petitioned has malicious intentions form beginning due to which he is
misguiding the Court by twisting and turning the facts of the case. He has violated the terms
of the divorce and abducted the children from the lawful custody of the mother i.e. Shivani
Malhotra and is absconding from the legal justice system of London till date. Providing
custody of the children to a man of such character is in itself the violation of the fundamental
principle of every law of guidance on this topic.
Thirdly the children currently are of tender age and in need of constant attention of mother.
Shivani have diligently followed the terms put forward to her by London Court. The Children
being U.K citizens are accustomed to the lifestyles and environment of London. The
accusations put forward by the petitioner are baseless and out of context.
In light of aforesaid arguments advances it is most humbly prayed that this Court grant the
custody of the children to the respondent Shivani Malhotra and pass any others as this Court
deems fit.

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ANNEXURE 1

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 ANNEXURE 2

MANU/SC/0810/1998
Equivalent Citation: 1997(6)ALT12(SC), 1998(1)BLJR743, I(1998)DMC1SC, JT1997(8)SC720, 1998-
1-LW161, 1998(1)RCR(Civil)190,

1997(6)SCALE624, (1998)1SCC112, [1997]Supp5SCR30, 1998(1)UJ47

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3517-18 of 1997
Decided On: 04.11.1997
Appellants: Dhanwanti Joshi
Vs.
Respondent: Madhav Unde

Hon'ble Judges/Coram:
S.B. Majmudar and M. Jagannadha Rao, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Party in perso
For Respondents/Defendant: Kailash Vasdev, Adv.

Case Note:
Family - custody of child - Sections 12, 17 and 48 of Guardians and Wards Act, 1890,
Section 11 of CPC, 1908 and Private International Law – appeal of appellant-mother
against Order passed in application for custody of child by respondent-father before
Family Court - earlier proceedings under Guardians Act which decided to give custody
of child to appellant acts as res judicata for respondent as it concerns same subject
matter - in present proceedings started afresh by respondent change in custody can be
granted only if respondent proves any substantial change of circumstances – sole
criteria of respondent being financially well off to afford USA education for his child
should not have been considered by Family and High Court - international norms
regarding applicability of judgment of US Courts on Indian Court is subject to
paramount consideration of welfare of child - thus Order of US Court granting custody
to respondent is not binding on Apex Court as under given circumstances child is well

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settled with his mother - also no wilful disobedience on part of appellant unable to
produce child in Court as he was unwilling to come to his father - held, custody to be
maintained with appellant-mother in best interests of child.

JUDGMENT
M. Jagannadha Rao, J.

RELEVANT EXCERPTS
In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil
Aspects of International Child Abduction". As of today, about 45 countries are parties
to this Convention. India is not yet a signatory. Under the Convention, any child below
16 years who had been "wrongfully" removed or retained in another contracting State,
could be returned back to the country from which the child had been removed, by
application to a central authority. Under Article 16 of the Convention, if in the process,
the issue goes before a court, the Convention prohibits the court from going into the
merits of the welfare of the child. Article 12 requires the child to be sent back, but if a
period of more than one year has lapsed from the date of removal to the date of
commencement of the proceedings before the court, the child would still be returned
unless it is demonstrated that the child is now settled in its new environment. Article 12
is subject to Article 13 and a return could be refused if it would expose the child to
physical or psychological harm or otherwise place the child in an intolerable position or
if the child is quite mature and objects to its return. In England, these aspects are
covered by the Child Abduction and Custody Act, 1985.

So far as non-Convention countries are concerned, or where the removal related to a

period before adopting the Convention, the law is that the court in the country to which
the child is removed will consider the question on merits bearing the welfare of the child
as of paramount importance and consider the order of the foreign court as only a factor
to be taken into consideration as stated in McKee v. McKee (Supra) unless the Court
thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt
return is for its welfare, as explained in Rel 1974 (1) All E R 913. As recently as 1996-
1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country),
Re,(1996) 3 FCR 233, CA by Ward, L.J. 1996 CLYB 165 that in deciding whether to
order the return of a child who has been abducted from his or her country of habitual
residence -- which was not a party to the Hague Convention, 1980, -- the courts'
overriding consideration must be the child's welfare. There is no need for the Judge to
attempt to apply the provisions of Article 13 of the Convention by ordering the child's
return unless a grave risk of harm was established. See also A (A minor) (Abduction:
Non-Convention Country) [Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in
Current Law, August 1997, p. 13]. This answers the contention relating to removal of
the child from USA.

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