MOCK TRIAL EXERCISE 2022

Campus Law Centre, Faculty of Law

University of Delhi

IN THE COURT OF GUARDIAN JUDGE, DELHI

Interlocutory Application No .......(2022)

In the matter of :-
Raj Malhotra.…………………………………..Petitioner
V.
Shivani Malhotra.…………………………….Respondent

COUNSEL APPEARING ON BEHALF OF THE

RESPONDENT

Submitted by:-
Saurav Kumar Gupta
Section:- C
Semester:- 5th
Class Roll no. :- 201715
Examination Roll no. :- 20309806685

1
 Table of Content
.................................................................................................................................................................3
STATEMENT OF FACTS: - ..........................................................................................................................3
OPENING STATEMENT:- ...........................................................................................................................4
EXAMINATION IN CHIEF :-.......................................................................................................................5
CROSS EXAMINATION:- ............................................................................................................................7
CLOSING STATEMENT ..............................................................................................................................8
ANNEXURE ‘A’ ..........................................................................................................................................9
ANNEXURE ‘B’ ........................................................................................................................................10

2
STATEMENT OF FACTS: -
1. Respondent is a British Citizen who was married to the petitioner. They have two
children out of wedlock.
2. The Petitioner and the respondent did not have a happy married life because of
Compatibility issues which lead to frequent fights.
3. 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.
4. 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 with him and happily living there.
5. According to the petitioner on 3rd January he 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 then after left for India on 10th January without applying for permission of the
London Court or informing the mother of the children.
6. This step was a blatant violation of the decree of the Court to which the London Court
took cognizance of the matter and issued a warrant against him.
7. 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.
8. 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.
9. Respondent made aware the petitioner of the arrest warrant and demanded that the
children should be returned to her.
10. 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.
11. The petitioner seeks the complete custody of his children, so he filed the present
petition.

3
OPENING STATEMENT:-

Your Lordship, I am the counsel of 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, I will try to establish that how the
petitioner, Raj Malhotra while taking the two children out of the custody of my 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 of my 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 for the same.

4
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.

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.

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.

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.

5
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?
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.

6
CROSS EXAMINATION:-

ESTABLISHING – TIMELINE OF EVENT TO PROVE THE ACTIONS OF

PETITONER AS DISHONEST

1. What were those circumstances that led you to take such an action?
2. When did your father got ill?
3. What was his condition at that point?
4. When did you reach India with your children?
5. If you were there for 7 days, why did you not apply for permission from London
Court?
6. Don’t you think it was your malicious Intent, due to which your date of departure
coincides with the date when you got the custody of the children?
7. Was there any plans of yours to return to London?
8. Don’t you think that at this tender age the children will miss their mother?
9. Do you think being the sole earner with ailing parents it will be feasible and sufficient
to take good care of the children?
10. Don’t you think you are over burdening your parents by putting additional
responsibilities of children onto them?

ESTABLISHING – PENAL OFFENCE OF KINDAPPING ON HIS OWN

VIOLATION

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?

7
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 evidence adduced,
the following emerges:
1. 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.
2. 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.
3. 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 facts, arguments advanced and authorities cited, it is most humbly prayed
before this Court grant the custody of the children to the respondent Shivani Malhotra or pass
such any other order as this Hon’ble Court deems fit.

For this act of kindness, the Respondent will be much obliged.

8
 ANNEXURE ‘A’
Affidavit
IN THE COURT OF GUARDIAN JUDGE, DELHI
In the matter of:-
Raj Malhotra.…………………………………. Petitioner
V.
Shivani Malhotra.……………………………. Respondent

AFFIDAVIT OF Mrs. Shivani Malhotra ex-w/o Raj Malhotra, 34 years old, living in London,
hereby states following: -
1. I am the mother of two child of those which the Petitioner wants the custody.
2. I got divorce from Petitioner and by the order of London court because we did not have
a happy married life because of Compatibility issues which lead to frequent fights.
3. We settled for a mutual divorce under which decree passed by London court, I have the
custody of the children whereas Petitioner have temporary custody on weekends from
10 am on Saturday to 8 pm on Sunday and according to decree if any party wants to
take children out of UK would have to take the permission of the court and both were
responsible for the maintenance of the Children.
4. The Petitioner left for India on 10th January without applying for permission of the
London Court or informing me so this step was a blatant violation of the decree of the
Court to which the London Court took cognizance of the matter and issued a warrant
against him.
5. I am living with Ajay who takes care of the children.
6. I must return to London for my job next week so can’t stay here to contest this custody
case filed by the Petitioner.
7. I affirm that the accompanying suit is drafted my counsel upon my instructions and
contents of the same are true and correct.
DEPONENT

VERIFICATION:-

9
 I, Saurav Kumar Gupta, do hereby verify on this ……day of november 2022 at Delhi that the
contents of the above said affidavit are true and correct to my knowledge and information and
nothing material has been concealed therefrom.
DEPONENT

ANNEXURE ‘B’

Dhanwanti Joshi v. Madhav Unde 1998 SCC (112)

Civil Appeal Nos. 5517-18 of 1997, decided on 04/11/1997
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

10
Current Law, August 1997, p. 13]. This answers the contention relating to removal of the
child from USA

11