TC-02 Applicant

5th Surana & Surana And Army Institute Of Law 1
National Family Law Moot Court Competition
TC 02
5TH SURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION
BEFORE THE HON’BLE FAMILY COURT OF KOLKATA
ORIGINAL JURISDICTION
Ms. Ambika Applicant

versus
Ms. Sakshi Respondent
MEMORANDUM ON BEHALF OF THE APPLICANT
MEMORANDUM ON BEHALF OF APPLICANT

TABLE OF CONTENTS
Sl. No. Particulars Page No.

1. INDEX OF AUTHORITIES 3
2. LIST OF ABBREVIATIONS 6
3. STATEMENT OF FACTS 7
4. ISSUES RAISED 8
5. ISSUES RAISED 8
6. ARGUMENTS ADVANCED 10
7. 1. WHETHER AMBIKA IS ENTITLED TO GET THE SOLE 10
LEGAL CUSTODY OF ARMAN?
8. 2. WHETHER SAKSHI CAN BE THE LAWFUL 16
GUARDIAN OF ARMAAN?
9. 3. WHETHER AMBIKA HAS A LEGAL BASIS TO CLAIM 22
OWNERSHIP OF SIDHANT'S ANCESTRAL PROPERTY?
10. PRAYER 25

INDEX OF AUTHORITIES
A. LIST OF CASES
1. Annamalal Mudaliar, In Re. AIR 1952 Madh B 93 (94)
2. Carla Gannon v. Shabaz Farukh Allarakhia, Criminal Writ Petition No. 509 of 2009.
(Bom. H.C.)
3. Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42
4. Faisal Khan v. Humera, 2020 SCC OnLine Del 572
5. Githa Hariharan v. RBI( 1999) 2 SCC 228
6. Kumar v. Jahgirdar v. Chethana Ramatheertha, 2003 (3) KarLJ 530
7. Lekha vs P. Anil Kumar 2006 SCC 13 555
8. Mohd. Irshad v. Nadeem Mat App. (FC) 218 of 2018
9. Navin Singh v. Jyoti Parashar AIR 2004 All 441
10. Saroja v. Santhil Kumar AIR 2011 642
11. Surinder Pal Sharma v. Surjit Kaur CIVIL APPEAL NO.9683 OF 2019
12. Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari, (2019) 7 SCC 42
13. 2012(1) Ker LT 312 (315) (DB)
B. LIST OF LEXICONS
1. WHARTON'S CONCISE LAW DICTIONARY, LEXIS NEXIS.
2. BLACK'S LAW DICTIONARY. (10TH ED.)
C. LIST OF STATUTES REFERRED

1. FAMILY COURTS ACT. 1984
2. HINDU MARRIAGE ACT, 1955
3. HINDU MINORITY AND GUARDIANSHIP ACT, 1956
4. THE GUARDIANS AND WARDS ACT, 1890
5. THE INDIAN MAJORITY Act, 1875
6. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 7.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007

D. LIST OF BOOKS REFERRED

1. LAW OF MARRIAGE AND DIVORCE, PARAS DIWAN AND PEEYUSHI
DIWAN (7TH ED.)
2. V.N.SHUKLA'S- CONSTITUTION OF INDIA, EBC (13TH ED.) 3. M.P. JAIN-
INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS (8TH ED.)
E. LIST OF LAW COMMISSION REPORTS, GUIDELINES AND

INTERNATIONAL CONVENTIONS REFERRED
1. LAW COMMISSION OF INDIA
2. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
3. INDIAN COUNCIL OF MEDICAL RESEARCH (ICMR) GUIDELINES, 2005

LIST OF ABBREVIATIONS
ABBREVIATIONS ACTUAL TERM

& And
AIR All India Report
ANR. Another
ART. Article
HON BLE Honourable
LTD. Limited
ORS. Others
R/W Read with
S. Section
S.C. Supreme Court
H.C High Court
S.C.R. Supreme Court Report
V. Versus

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

STATEMENT OF FACTS
Sidhant and Ambika were a married couple with a son named Armaan. Sidhant's parents
passed away in an accident, and he became depressed and started drinking heavily. Ambika
was unhappy in the marriage and felt she was not getting any help from Sidhant with
household chores or childcare. Ambika's friend Akaash consoled her during this time.
Armaan was diagnosed with a serious illness and required around-the-clock care. One day,
Ambika left Armaan with the house help and went out to meet Akaash. Armaan fell down
from the stairs and got injured. Sidhant blamed Ambika for leaving the child alone.
Later, Sidhant went to Kolkata and did not return for two months. Ambika took a job in Delhi
without informing Sidhant and took Armaan with her. Sidhant was very upset when he found
out Ambika had left. He lost his job and became even more depressed. He eventually died by
suicide.
Sakshi, Sidhant's sister, took care of Armaan after his father's death. Ambika visited Armaan
in Kolkata and told Sakshi that she planned to take him back to Delhi with her permanently.
Sakshi was reluctant to let Armaan go, and they argued.
Ambika married Akaash and they are expecting a baby. Akaash wants Ambika to bring
Armaan back to Delhi. Ambika went back to Kolkata to get Armaan, but Sakshi refused to
give him to her.
Ambika filed a case for custody of Armaan and a share of the family property. Sakshi is
arguing that she should be the legal guardian of Armaan.

ISSUES RAISED
1. WHETHER AMBIKA IS ENTITLED TO GET THE SOLE LEGAL CUSTODY

OF ARMAN?
2. WHETHER SAKSHI CAN BE THE LAWFUL GUARDIAN OF ARMAAN?
3. WHETHER AMBIKA HAS A LEGAL BASIS TO CLAIM OWNERSHIP OF

SIDHANT'S ANCESTRAL PROPERTY?
SUMMARY OF ARGUMENTS
1. After the father's passing, it is advisable to grant guardianship primarily to the mother.
Maternal custody provides emotional stability and continuity for the child, promoting
family bonds and creating a nurturing environment. Mothers tend to have a deep
understanding of their children's needs and are more attuned to their emotional well-
being. Moreover, mothers often serve as the primary caregivers, possessing a detailed
knowledge of their child's daily routines and preferences. Entrusting guardianship to
the mother ensures that the child's upbringing remains consistent, preserving stability
and offering comfort during the challenging period of grieving and adjustment.
2. If the father of a minor child has passed away and the mother is alive, she is
considered the natural guardian. In this case, Ambika, being the natural guardian, is
capable and willing to care for Armaan. Therefore, Armaan should rightfully be with
Ambika, his biological mother. Sakshi claims that Sidhant designated her as Armaan's
guardian by practice, but there is no evidence to support this assertion. Thus, we
cannot ascertain whether Sidhant actually made such a statement or not. Given
Sakshi's potential ulterior motives and lack of proof regarding her guardianship,

custody of Armaan should not be granted to her. It's essential to recognize that after
the father's death, the mother holds the guardianship rights, not the aunt.
3. Ambika claims ownership of Sidhant's property, including an ancestral bungalow and
a palatial house, based on an unregistered will. However, there are challenges due to
the lack of registration, especially for the ancestral property. Even if the will is not
enforceable, Armaan, Sidhant's son, has a birthright to a share of the ancestral
property. As Armaan's natural guardian, Ambika could argue that she needs the
property for his benefit. The Hindu Succession Act governs the distribution of the
property, and if Sidhant had no will, Armaan and Ambika would inherit the property
equally.

ARGUMENTS ADVANCED
1. WHETHER AMBIKA IS ENTITLED TO GET THE SOLE LEGAL CUSTODY

OF ARMAN?
1. Guardian is a person who has rights and duties with respect to the care and control of a
minor's person or property. Guardianship includes the right to make decisions about the
minor's upbringing, disposal of his/her property, etc. 2 The word "care" defines a guardian's
responsibilities. "Care" indicates "looking after" in a wider sense than "custody," which is
simply "physical keeping." Custody refers to the physical care and control of a minor.
Custody is thus the right to the physical presence of the child. It includes the right to make
day-to-day decisions regarding the child's education, medical treatment and general
movement.3 .Following the father's passing, it is prudent to assign guardianship primarily to
the mother. Maternal custody guarantees emotional security and consistency for the child,
fostering familial connection and offering a nurturing atmosphere. Mothers typically exhibit a
profound comprehension of their children's requirements and are more sensitive to their
emotional welfare. Additionally, mothers often assume the role of primary caregivers,
possessing intimate familiarity with their child's daily routine and preferences. Entrusting
guardianship to the mother ensures that the child's upbringing remains steadfast, maintaining
stability and a sense of reassurance during a difficult period of bereavement and adaptation.
1.1 NATURAL GUARDIANSHIP LIES WITH AMBIKA
2. Section 6 of The Act of 1956 states about the natural guardian of the minor. There are three
types of natural guardians under the Act of 1956 they are father, mother or the husband.
According Section 6 of the Act of 1956, father is the natural guardian and after him the
mother becomes the natural guardian of the minor. Here, in this scenario – Sidant passed
away and now, Ambika is the natural guardian. As mentioned, in S.6 the mother is the
2
Guardians and Wards Act, 1890 ? 4(2) (India).
3
Lawyers Collective, Custody and Guardianship of Minors: Legal Aid Handbook 1 (1995).

guardian of a minor boy after the father when the father is ot coming forward to claim
guardianship of the minor boy. The main advantage of recognizing natural guardians is that
virtually all children immediately have someone responsible for their care. No legal
intervention or related expenses are necessary. Furthermore, the concept of a natural
guardian is itself natural. The vast majority of parents have a natural interest in caring for
their children. Biological parents - father and mother who are natural guardian are to be
preferred while making a declaration as to guardianship or in making an appointment of a
guardian, for what so ever be its further.4
3. As regards constitutionality of legislation, in particular section 6 of HMG Act , it is to be

noted that validity of legislation is to be presumed and efforts should always be there on part
of Law courts in matter of relation of legislation in statute book rather than scrapping it and it
is only in gross violation of constitutional sanctions, that law court would be within its
jurisdiction to declare legislative enactment to be an invalid piece of legislation and not
otherwise and it is on this perspective, expression s used in section 6 is analysed. The word
guardian in the definition section means and implies both the parents, the same meaning
ought to be attributed to be word appearing in section 6(a) and in that perspective mother's
right to act as the guardian does not stand obliterated during the Life time of father and read
the same on the statute otherwise would tantamount to a violent departure from the legislature
intent.
4. Section 6(a) itself recognises that both father and the mother ought to be treated as natural
guardian and the expression "after" therefore shall have to be read and interpreted in a
manner so as not to defeat the true intent of Legislature. Father and mother are natural
guardian in terms of provisions of section 6 read with section 4(c). Father by reason of a
dominant personality cannot be ascribed to have a preferential right over mother in matter of
guardianships since both fall within the same category. Supreme Court of India Court in the
case of Navin Singh v. Jyoti Parashar.5 has held that while deciding the question of custody,
the welfare of the child to be looked into and the claim of the mother cannot be ignored or
denied on the ground that the husband is natural guardian under section 6(a)
of Guardians and Wards Act, 1890. 6
4
2012(1) Ker LT 312 (315) (DB).
5
2004 SCC ONLINE ALL 774
6
Navin Singh v. Jyoti Parashar AIR 2004 All 441

1.1 BEST INTEREST & WELFARE OF THE CHILD
5. The Petitioner humbly states that the Child Custody Cases in India Rely on the concept of
"Best Interest of the Child Welfare of the Child. 7" Article 3.112 of the United Nations
Convention on the Rights of the Child (Convention) requires "the best interests of the child"
to be the "primary consideration" "in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies."
6. Maintaining the fundamental importance of the child's welfare in custody procedures will
help to assure the child's future safety and protection, regardless of fluctuating familial
circumstances. The issue with the welfare concept is that, despite its widespread use, the legal
content of this principle is not illuminated by appellate judicial decisions.8The welfare
standard's determinants should therefore be explicitly defined to prevent judges from
overlooking specific difficulties while deciding on custody and visitation. The best interests
of a child should be a focal point in any custody dispute, according to a simple explanation of
this principle. Custody should be given to the parent who is best equipped to provide the
child's mental and physical well-being, educational and medical needs, and all of the basic
rights that a child is entitled to as he or she grows up. 9 The rationale for this principle, despite
its abstract character, is that every child requires a pleasant and progressive environment in
which to flourish. A parent must be qualified to take day-to-day care and control of the minor
and must not be unfit for providing the child with facilities.
7. For example, if the father of the child is able to prove to the Court that he can provide
better quality of education, resources and healthcare to the child than the mother, he will be
granted the custody of the child. It was held in Tejaswini Gaud V Shekhar Jagdish Prasad
10
Tiwari that the child's welfare encompasses factors such as upbringing, the guardian's
7
"The Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of the child.
8
Asha Bajpai, Custody and Guardianship of Children in India, 39(2) FAMILY LAW QUARTERLY 441, 447 (2005).
9
Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No. 257 (2015).
10
Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari, (2019) 7 SCC 42

economic well-being, the child's comfort, contentment, health, and education. In general, the
welfare of the child is determined by factors such as the child's physical and mental
condition, each parent's physical and mental condition, the child's relationship with each
parent, the child's needs regarding other important people like siblings, extended family
members, peers, etc., the role each parent has played and will play in the child's care, and
each parent's ability to support the child's contact and relationship with others. These
elements, however, are not exhaustive, and some statutes specifically provide that courts
must examine such circumstances as the court deems necessary and proper to the
determination. The Supreme Court of India has historically maintained that the welfare and
interest of the child, not the rights of the parents under a legislation, is the most important
factor to examine when deciding child custody issues. As if to clear up any uncertainties, the
Court has stated, that no statute on the topic can neglect, disregard, or destroy the crucial
aspect of the minor's welfare. In a landmark decision, the Supreme Court said that gender
equality is one of the essential values of our Constitution, and that the father cannot be
ascribed to have a preferential privilege over the mother in the area of guardianship because
both come within the same category. This was tantamount to the Supreme Court declaring
that gender was not a factor in child custody decisions. However, the Karnataka High Court
later ruled that it is the most natural thing for any child to grow up in the company of one's
mother and that a minor receives the best protection only through the mother. The Supreme
Court made it clear that they do not adhere to the general remarks and comments made by the
High Court in favour of the woman as parent to be always preferable to the father to keep
custody of the kid, in an appeal in the same case. 11 The paramount consideration should be
given to the welfare of the child.” At the outset, relying on Elizabeth Dinshaw v. Arvand
Shaw Dinshaw, (1987)12, the High Court reiterated that when the court is confronted with a
question relating to the custody of a minor child, the guiding factor cannot be the legal rights
of the warring parties. The sole and pre-eminent criteria that ought to weigh with the court is
what would best serve the interest and welfare of the minor. In addition to that Court also
stated in a case that the guardianship petition filed by the appellant appeared to be more a tool
to even out a score with the respondent, rather than a genuine means to reach out to the child
and take over his custody, purely in his best interest and for his well-being.13Here, in this
scenario, Ambika – being the biological mother of Arman is the one who own the complete
11
Kumar v. Jahgirdar v. Chethana Ramatheertha, 2003 (3) KarLJ 530
12
Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42
13
Faisal Khan v. Humera, 2020 SCC OnLine Del 572...

custody and guardianship of the child for the sake of her affection towards son. Being own
biological mother Ambika can deliver her acts in best interest of the kid.
1.2 REMARRIAGE IS NOT A HINDRANCE – FAMILY INSTITUTION IS BUILT
8. Remarriage is a common occurrence in today's society, often bringing with it complex

dynamics and considerations, especially when children from previous marriages are involved.
One of the critical issues that arise in such situations is the question of guardianship of the
children from the prior union. Some argue that remarriage may hinder a parent's ability to
retain guardianship of their children from a previous wedlock. However, it is essential to
recognize that remarriage should not be viewed as a hindrance to maintaining guardianship
rights over a child from a previous marriage. Instead, it should be understood that a parent's
capacity to provide a stable and nurturing environment for their child should be the primary
determining factor in guardianship decisions, irrespective of their marital status.
9. Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna, while
14
dismissing the appeal, Mohd. Irshad v. Nadeem held, “… mere second marriage in the
circumstances when one has lost his first spouse, cannot be held per se a disqualification
from his continuing to be a Natural Guardian... No doubt, the maternal grandparents may
have immense love and affection towards the child, but it cannot substitute the love and
affection of a natural parent. Even the disparity in the financial status cannot be a relevant
factor for denying the custody of a child to the natural parent. However, in the matters of
Guardianship and Custody, we are confronted with the dilemma where the logic may say that
the child must be in the custody of his father, but the circumstances and the intelligent
preference of the child points otherwise.”
 Maintaining Continuity and Stability: One of the key arguments in favor of retaining
guardianship despite remarriage is the importance of continuity and stability in a
child's life. Children thrive in environments where they feel secure and have a sense
of belonging. Abrupt changes in guardianship arrangements can disrupt this stability
and have adverse effects on a child's emotional well-being. By allowing a parent to
maintain guardianship even after remarriage, the child can continue to benefit from a
familiar and stable environment, mitigating the potential negative impacts of the
remarriage on their upbringing.
14
| Mat App. (FC) 218 of 2018

 Parental Responsibility and Commitment: It is essential to recognize that remarriage

does not diminish a parent's love or commitment to their child from a previous
marriage. In many cases, remarriage can even enhance a parent's ability to provide for
their child by offering additional support and resources within the new family unit.
Rather than viewing remarriage as a competing interest with parental responsibility, it
should be seen as complementary, with the potential to enrich the parent-child
relationship and contribute positively to the child's upbringing.
 The Importance of Co-Parenting: In cases where both parents from the previous
marriage are involved in the child's life, remarriage should not automatically negate
their joint guardianship rights. Effective co-parenting arrangements can be established
to ensure that both parents remain actively involved in their child's upbringing,
regardless of their marital status. By prioritizing cooperation and communication
between all parties involved, including stepparents, former spouses, and extended
family members, the child's best interests can be served, and their relationship with
both parents can be preserved.
10. While examining the present matter it should be kept in mind that the Supreme Court of
India overruled a Setting aside the judgment of the Kerala High Court, a two-judge Bench
headed by J. AR Lakshamanan held that, “We are of the opinion that remarriage of the
mother cannot be taken as a ground for not granting the custody of the child to the mother. 15
In conclusion, remarriage should not be regarded as a hindrance to retaining guardianship of
a child from a previous marriage. Instead, guardianship decisions should be based on the
parent's ability to provide a stable and nurturing environment for their child, irrespective of
their marital status. By prioritizing the best interests of the child, maintaining continuity and
stability in their upbringing, and promoting effective co-parenting arrangements, remarriage
can be integrated positively into the child's life without compromising their relationship with
their parent(s) or their overall well-being.
15
2006 SCC 13 555

2. WHETHER SAKSHI CAN BE THE LAWFUL GUARDIAN OF ARMAAN?
11. It is not necessary that merely because an application has been made a guardian must be
appointed. The Court must consider whether appointment of a guardian is really necessary. 16
Where the mother of a minor boy is living and looking to his comforts, it is not necessary to
appoint a guardian17.
12. In cases where a person has expressed his desire to get himself appointed as the guardian
of person and property, the Court should keep in mind that the minor's interest is of
paramount consideration. The court should find out the material for the purpose of enabling it
to judge whether such a person should be permitted to be the guardian of person and property
of the minor or whether his prayer should be rejected. When it is coupled with the prayer of
permitting such a person to adopt such a child, the Court should be careful enough to see
whether the said desire expressed by the said person is bona fide or is motivated with some
other intention which would not be beneficial to the future of the said child. In this context,
the following factors are very much important
1) Whether such person and his spouse have criminal antecedents.

2) Whether such a person and his spouse are placed in their life and are capable of
shouldering responsibility of upbringing the said child.
3) Whether the said child would get the proper atmosphere to grow physically, mentally
and intellectually in association with the same person and his spouse and his family
members.
4) Whether the said person, his family member would shower on such a child the
humanly love and affection so as to create a good life in future for such child.
5) Whether such a child would get proper education and would get future opportunities
of having a better life and social status. While considering all these factors, the Court
should be always careful in protecting the interest of such minor children and its
welfare would always be a paramount consideration.18
2.1 FISCAL MOTIVE
16
AIR 1952 Madh B 93 (94).
17
AIR 1939 Lah 221
18
AIR 2002 Bom 1 (4): 2001 (4) Bom LR 906 (DB).

13. On 23.10.2022, Sidhant went to Kolkata to look into some family affairs but didn't return
for two months. During Sidhant's visit, Sakshi tried to convince Sidhant that they should
convert the ancestral bungalow into a boutique hotel. But Sidhant didn't pay much heed to
Sakshi's suggestions and told her that they were already getting enough in the form of rent to
sustain Windows comfortably.19
14. Since Sidhant during his lifetime didn’t support Sakshi’s business concept, she couldn’t
move further with her idea. Now the shares of Sidhant will be carried on to Armaan, due to
Sidhant’s death. Moreover Armaan has his own share in the property. It is now easy for
Sakshi to get control over the property through Armaan. The motive behind Sakshi’s love and
care towards Armaan is the fiscal gain that she would have if she is the guardian of him. Thus
she can start her business in the family property because there won’t be anyone to stop her.
She will get control over the whole property if she becomes the guardian of Armaan.
Therefore Sakshi shouldn’t be appointed as the lawful guardian of Armaan.
15. Starting a boutique hotel in their ancestral bungalow is actually a high profit business idea
now. But somehow Sidhant was against her idea. Sidhant was a person who had very much
care and love towards his parents. His parents passed away in an accident in September 2018.
Sidhant after the death of their parents slipped into depression and had to consult a
psychiatrist, who put him on medication 20. This shows the affection of Sidhant with his
parents. The reason for Sidhant not accepting Sakshi’s business idea could be the same
affection itself. He doesn’t like losing the memories of his parents in their ancestral
bungalow. Making their ancestral bungalow a boutique hotel will destroy its current state and
thus he will lose his memories of his parents and the ancestral bungalow.
16. Moreover Sidhant knew that Sakshi, a college lecturer with no prior experience in
business, is not fit to run such a business. In total Sidhant was completely against the business
proposal of Sakshi due to various reasons. Sidhant feared that allowing her to start a boutique
hotel by converting their ancestral bungalow will be a great loss, psychologically and
economically.
17. Now Sakshi is using Armaan to get control over the property and make her own fortune
through it. Being the guardian of Armaan and his property, Sakshi will be the sole beneficiary
19
Para 10, proposition
20
Para 3, proposition

after that. Sakshi will exploit this opportunity financially to gain profit through Armaan’s
property.
18. As per section 13 of the Hindu Minority and Guardianship Act, 1956 states that the
welfare of the child should be the primary consideration when a court appoints a guardian for
a Hindu minor. The court has the right to terminate a person's guardianship if the
appointment is not made in the child's best interest. 21 The provision in the Hindu Minority
and Guardianship Act makes it clear that the welfare of the child should be considered. But in
the case of Sakshi and Armaan, the welfare of Armaan will not be considered by Sakshi, she
will only look into her welfare. Sakshi will get unjust enrichment if she becomes the guardian
of Armaan. She will exploit Armaan in every possible way for her personal gain.
19. Sakshi can’t take care of Armaan without the fiscal motive. Sakshi has never tried to take
care of Sidhant. She could provide treatment and comfort to him while he was in his
depressed state and was having drinking issues. Sakshi is a person who has never cared for
Sidhant and she has never worked for the welfare of him. She had no love or interest towards
him. On 23.10.2022, Sidhant went to Kolkata to look into some family affairs but didn't
return for two months.22 Sidhant went to Kolkata due to the issues in the family. Any person
who knows about Sidhant’s issues would try to comfort him and help to reconcile the
problems. But surprisingly during Sidhant's visit, Sakshi tried to convince Sidhant that they
should convert their ancestral bungalow into a boutique hotel. She never thought about his
problems at that time, what she focused on was her personal gain only. She has never
provided a sisterly love to Sidhant. She never loved him. How can she love Armaan, the son
of Sidhant without loving Sidhant? The answer is simple, she is only focusing on the profits
she would get by being his guardian. These reasons are very much enough to state that
Sakshi only possesses fiscal motive in the matters of Armaan. The reason for her acclaimed
care towards Armaan is his right in the ancestral property.
2.2 ABSENCE OF MOTHERLY INSTINCT / FAMILY INSTITUTION
21
section 13 of the Hindu Minority and Guardianship Act, 1956
22
Ibid 1

20. Unlike Ambika, Sakshi is not Armaan’s mother, she is not even a mother to any child.
Therefore she doesn’t know how a mother will be and how a mother will take care of her
child. Only a mother will know how to care and nurture a child in the proper way. The innate
love and care that a mother can provide is impeccable. The serene connection to the birth
mother can never be immuted. The love of Ambika can never be compared to Sakshi’s.
Sakshi is a person who has never been a mother nor a wife. This infers the absence of
motherly instinct of Sakshi and her asceticism towards family institutions.
21. The welfare of the minor is the utmost important factor in deciding the guardian. The
expression of "welfare of the minor" though has not been defined, yet undoubtedly it has to
be given a very wide meaning. So long as the child is young enough to need the day to day
care of his mother, it is better to leave the child with the mother, unless the mother is an
unsuitable person.23 Custody of a child has to be decided on the sole and predominant
criterion of what would best serve the interest and welfare of the minor. 24 Natural love and
affection of the parents creates a proper atmosphere and circumstances for the purpose of
good upbringing of the child. Natural affection is absolutely important and only because of
this they are treated as natural guardians 25. In the case of Armaan, the atmosphere that he will
get at Sakshi’s will not be suitable for a child of his age. Armaan requires an atmosphere
where he is confident that the people and things around him are his own, unless such a
condition is provided to him he will be socially deprived. Thus the atmosphere at Sakshi’s
will have a negative impact on Armaan’s whole life.
22. During the period of corona when work from home had to be done Sidhant never
contributed to the household chores and rather his drinking became worse and he became
irritable as he was not able to go out anywhere with his friends. Ambika while working also
had to take care of Armaan as well 26. In August 2020, Armaan was diagnosed with a severe
case of Rickets. He needed extra care on a 24/7 basis. 27 Ambika is the only person who
handled all these situations and took care of Armaan. Thus Sakshi can’t claim that Ambika
never took care of Armaan at any time. It is very difficult to balance a family life where a
husband is like Sidhant and Ambika has done that job very well. The mere fact that Sakshi
23
1993 (2) DMC 457(462)
24
1993 (3)Hindu LR 270 (271):1993 (2) SCC 6
25
2005 (2) Hindu LR 19S (200): 2005 (2) Bom CR 655.
26
Para 4 proposition
27
Para 5 proposition

has taken care of Armaan for a while due to her busy schedule at work doesn’t mean that
Ambika doesn’t love Armaan or she didn’t want to take care of him. If Sakshi was not
available at that time of emergency, Ambika herself would have taken care of Armaan.
23. The abstinence of Sakshi towards the family set up will adversely affect Armaan if she is
the guardian instead of Ambika. The difference in the atmosphere that he will get from them
is a matter of great importance. Mother being concerned only with the interest and welfare of
the child, it was held that, the mother will groom the child into a disciplined, focussed and
ambitious person. Though the child had shown unprecedented stubborness in his refusal to go
with the mother, such an attitude cannot come within the meaning of "intelligent
preference".28 Ambika has shown her love and care towards Armaan and she's still loving
Armaan. Therefore Ambika is entitled to get the custody of Armaan.
2.3 PROBABILITY OF FUTURE MARRIAGE OF SAKSHI
24. The present life of Sakshi shows that she has no interest in a family life of her own. But it
can’t be confirmed that she won’t get married in the future. Therefore if she gets married in
the future, Armaan will be a burden for her. If the future husband of Sakshi is not fond of
Armaan, he will face negligence from the home he thought was his own. Later Sakshi will
have kids of her own at that time Armaan might be avoided, he will be deprived of the love
and care he wants.
25. There are families where step-siblings live together harmoniously, but it is not the case
here, Armaan is not Sakshi’s own son. Whatever she claims about her love towards Armaan,
it won’t be the same if she got a kid of her own. There will be huge disparity in everything
when she gets her own kid.
26. The fact that Ambika has remarried does not affect the right of her as the mother to get
the custody of Armaan. In the case of right to custody of minor children, the mere fact of
remarriage of mother does not disentitle woman to custody of her minor children. 29 The
remarriage of Ambika does not change the fact that she is the natural mother of Armaan.
28
2011 (4) Mad LJ 494 (507).
29
1969 Cur LJ 872 (Punj)

Remarriage won’t affect the love and care that Ambika has towards Armaan. Even though
Ambika has remarried, Akash who is her husband now has expressed his interest and love to
adopt Armaan as their own son. This confirms that Armaan will get a normal life as every
other child, with Ambika and Akash.
27. There are chances of abuse also when Sakshi has her own kids, the kids and husband of
Sakshi might treat Armaan like an outsider. The husband isn’t related to Armaan in any way,
he might thus treat Armaan cruelly, and therefore Armaan might be abused. A 5 year old boy
like Armaan should not be left in such an atmosphere and situation. What he requires at this
age is the care and love from his own mother, who loves him very much and is ready to take
care of him.
28. The claims that Sakshi put forward are all fake. Ambika never asked Sakshi to take care
of Armaan or has left him with her. It is Sakshi who suggested that she can look after him for
a while, in the meantime Ambika can gather herself. 30 After getting the job in Delhi Ambika
as a beginner in Delhi couldn’t find and afford a place where they both can stay. Since she
just started her new job she was not available in such a way that she could take care of
Armaan properly. Therefore she asked Sakshi to look after Armaan for some while until she
is stable and has her own accommodation. 31 Sakshi brought up the claims in such a way that
everyone would think that Ambika left Armaan alone and Sakshi took him. Everyone
misinterpreted the good deeds of Ambika due to her fake claims with negative allegations
against Ambika.
29. Now Ambika is stable on her own and has accommodation and facilities to provide for
Armaan. But Sakshi has changed and is not giving Armaan back to her. Sakshi has said that
Armaan gave solace to her and Armaan is her life, but no one knows how Armaan gave
solace to her. Since she is alone in every manner, we can doubt that Sakshi might approach
Armaan with other motives where she can physically satisfy her. There are various cases
where an aunt or uncle sexually assaulted their niece or nephew. Armaan should not be left
with Sakshi, he should live and grow with his own family with his own mother.
30
Para 11
31
Para 16

30. After the death of the father of a minor, his mother is his natural guardian 32. If the father
of a minor child is dead and the mother is alive, she will be the natural guardian. Here
Ambika who is the natural guardian, is capable and ready to take care of Armaan. Therefore
Armaan should be with Ambika, his real mother. Sakshi is claiming that Sidhant has said that
she is the real mother of Armaan by practice and he has deputed her as the guardian of
Armaan. But there is no proof for any of that, so we can’t believe whether he has actually
said that or not. Sakshi should not be given the custody of Armaan because she has various
other motives to exploit Armaan for her own needs and gains. After the death of the father,
mother is the guardian not the aunt.
3. WHETHER AMBIKA HAS A LEGAL BASIS TO CLAIM OWNERSHIP OF

SIDHANT'S ANCESTRAL PROPERTY?
31. Under the Hindu Succession Act, 1956, the distribution of Sidhant's property, including
an ancestral bungalow, a palatial house, and a rented showroom, is governed by the law. The
Supreme Court of India has established the validity of unregistered wills, provided they are
duly executed and attested. However, Ambika's claim to the ancestral property, as specified
in an unregistered will, faces hurdles due to its lack of registration. Armaan, Sidhant, and
Ambika's child, get right by birth in the ancestral property.
3.1 Validity of Unregistered Wills under the HAS
32. An unregistered will pertains to a testamentary document that has not been formally
registered with the Sub-Registrar’s office. In the Indian legal context, while registration of a
will is not obligatory.
33. The Supreme Court of India has held in several cases that an unregistered will is valid and
enforceable in law. In the case of Saroja v. Santhil Kumar33 , the Supreme Court held that an
unregistered will could be proved by leading evidence of its execution and due attestation.
32
(1986) 1 DMC 164 (166) : (1986) I Hindu LR 317 (DB).
33
AIR 2011 642

34. In another case, Surinder Pal Sharma v. Surjit Kaur 34, the Supreme Court held that an
unregistered will could be proved by leading evidence of its possession and custody by the
testator. The Court also held that the absence of registration did not make the will invalid.
35. Despite the validity of an unregistered will, its lack of registration poses significant
challenges, particularly in cases concerning ancestral property. Ancestral property, as defined
under the HSA, encompasses assets inherited through the paternal lineage spanning up to four
generations. In scenarios where an unregistered will fails to hold enforceability, the specific
succession rules outlined within the HSA for ancestral property come into effect.
Consequently, individuals like Armaan may assert their birth right entitlement to ancestral
property.
36. While an unregistered will may possess legal validity, its implications, especially
concerning ancestral property and guardianship matters, necessitate a comprehensive
understanding of the prevailing legal framework and jurisprudence.
3.3 Ambika as a Guardian of Armaan’s property.
37. Ambika could argue that her claim to Sidhant's property is not for her but in the interest
of her child, Armaan, who is a legal heir. The unregistered will explicitly mentions the child
of Sidhant and Ambika as an heir, which strengthens the claim for Armaan's share, indirectly
affecting Ambika's financial interests, especially in her capacity as Armaan's guardian.
With respect to the law on guardianship, the Hindus are governed by the Hindu Minority and
Guardianship Act, 19563. Under the Act, a guardian is someone who looks after the person,
or property, or both of a minor (a person below eighteen years of age) and the natural
guardian of a minor is the father and after him, the mother.35
38. In matters concerning the appointment of a guardian, it is imperative to underscore that

the necessity for such appointment is contingent upon the circumstances of each case. The
court must undertake a judicious assessment to ascertain whether the appointment of a
guardian is indeed warranted. Factors such as the presence and adequacy of parental care,
particularly when the mother of a minor is actively involved in the child's upbringing and
well-being, are pivotal considerations in determining the necessity of appointing a guardian. 36
34
CIVIL APPEAL NO.9683 OF 2019
35
Hindu Minority and Guardianship Act, 1956, Ss. 4(a), 4(b) and 6(a)
36
AIR 1952 Madh B 93 (94)

Githa Hariharan v. RBI37 was a watershed judgment on the subject-matter of guardianship

and paved the way for recognition of mothers as natural guardians.
Ambika is the Natural Guardian of Armaan, and she is not financially stable. Even though
she is married to Akash, Sidhant’s family has responsibility to take care of the child.
3.3 Intestate Succession for Hindus
39. Hindu succession act encompasses and applies to everyone who practices their religion or
who is legally categorized as a Hindu. In Hindu Male Intestate Succession, According to the
terms of this Act, the following parties may file a claim in the event that a Hindu man passes
away intestate. First Claim Heirs of Class I legally. They are each entitled to the assets
equally. Mother, husband, and kids are who they are. When a kid passes away, their spouse
and children each receive an equal part. Here Sidhant is died, and his property is not divided
therefore Armaan and Ambika get equal shares. Therefor Ambika is entitled to claim
ownership of Sidhant's ancestral property.
PRAYER
37
(1999) 2 SCC 228

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS MOST HUMBLY PRAYED BEFORE THIS
HON’BLE FAMILY COURT TO HOLD/ADJUDGE/DECLARE THAT:
Grant this petition for allowing sole legal custody of Arman to Ms.Ambika considering
the fact of best interest of the child and protection of her guardianship right being the
biological mother / natural guardian.
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the interest of Justice, Equity and Good Conscience.
For this, the Petitioners shall be duty-bound and forever pray.

The Counsels are also bound by Sacramentum habet in se tres comites, varitatem, justitiam et
judicium; veritas habenda est in jurato; justitia et justicium in judice
.
Place: Kolkata, India S/d:__________

COUNSELS FOR THE PETITIONER

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5th Surana & Surana And Army Institute Of Law 1

National Family Law Moot Court Competition

5TH SURANA & SURANA AND ARMY INSTITUTE OF LAW

BEFORE THE HON’BLE FAMILY COURT OF KOLKATA

Ms. Ambika Applicant

MEMORANDUM ON BEHALF OF THE APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

Sl. No. Particulars Page No.

MEMORANDUM ON BEHALF OF APPLICANT

C. LIST OF STATUTES REFERRED

MEMORANDUM ON BEHALF OF APPLICANT

D. LIST OF BOOKS REFERRED

E. LIST OF LAW COMMISSION REPORTS, GUIDELINES AND

MEMORANDUM ON BEHALF OF APPLICANT

ABBREVIATIONS ACTUAL TERM

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

1. WHETHER AMBIKA IS ENTITLED TO GET THE SOLE LEGAL CUSTODY

2. WHETHER SAKSHI CAN BE THE LAWFUL GUARDIAN OF ARMAAN?

3. WHETHER AMBIKA HAS A LEGAL BASIS TO CLAIM OWNERSHIP OF

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

1. WHETHER AMBIKA IS ENTITLED TO GET THE SOLE LEGAL CUSTODY

1.1 NATURAL GUARDIANSHIP LIES WITH AMBIKA

MEMORANDUM ON BEHALF OF APPLICANT

3. As regards constitutionality of legislation, in particular section 6 of HMG Act , it is to be

MEMORANDUM ON BEHALF OF APPLICANT

1.1 BEST INTEREST & WELFARE OF THE CHILD

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

1.2 REMARRIAGE IS NOT A HINDRANCE – FAMILY INSTITUTION IS BUILT

8. Remarriage is a common occurrence in today's society, often bringing with it complex

MEMORANDUM ON BEHALF OF APPLICANT

 Parental Responsibility and Commitment: It is essential to recognize that remarriage

MEMORANDUM ON BEHALF OF APPLICANT

2. WHETHER SAKSHI CAN BE THE LAWFUL GUARDIAN OF ARMAAN?

1) Whether such person and his spouse have criminal antecedents.

2.1 FISCAL MOTIVE

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

2.2 ABSENCE OF MOTHERLY INSTINCT / FAMILY INSTITUTION

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

2.3 PROBABILITY OF FUTURE MARRIAGE OF SAKSHI

MEMORANDUM ON BEHALF OF APPLICANT

MEMORANDUM ON BEHALF OF APPLICANT

3. WHETHER AMBIKA HAS A LEGAL BASIS TO CLAIM OWNERSHIP OF

3.1 Validity of Unregistered Wills under the HAS

MEMORANDUM ON BEHALF OF APPLICANT

3.3 Ambika as a Guardian of Armaan’s property.

38. In matters concerning the appointment of a guardian, it is imperative to underscore that

MEMORANDUM ON BEHALF OF APPLICANT

Githa Hariharan v. RBI37 was a watershed judgment on the subject-matter of guardianship

3.3 Intestate Succession for Hindus

MEMORANDUM ON BEHALF OF APPLICANT

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

For this, the Petitioners shall be duty-bound and forever pray.

Place: Kolkata, India S/d:__________

MEMORANDUM ON BEHALF OF APPLICANT

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