OF 2015
Appellant
V.
Respondents
TABLE OF CONTENTS
SUBJECT
PAGE
NO
LIST OF ABBREVIATIONS
3, 4
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED
7,8
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
10
STATEMENT OF ISSUES
11
SUMMARY OF ARGUMENTS
11
ARGUMENTS ADVANCED
12
PRAYER
29
LIST OF ABBREVATIONS
EDN
-EDITION
AIR
ART.
- ARTICLE
C.J.
- CHIEF JUSTICE
Cr.P.C
DPSP
HONBLE
- HONOURABLE
ICCPR
UDHR
I.P.C.
ANR
-ANOTHER
ORS.
- OTHERS
S.
- SECTION
SC
- SUPREME COURT
HC
-HIGH COURT
SCALE
SCC
St.
- STATE
v.
-VERSUS
NO.
- NUMBER
PARA
-PARAGRAPH
CPC
HMA
HMGA
GWA
UK
-UNITED KINGDOM
TN
-TAMIL NADU
ACHR
PNJ
DRC
ICESR
UNCRC
FR
-FUNDAMENTAL RIGHTS
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED:
MAXWELL, 14THEDN.
MULLA, THE CODE OF CIVIL PROCEDURE, LEXIS NEXIS, 16THEDN.
PARAS DIWAN LAW OF ADOPTION AND GUARDIANSHIP, UNIVERSAL
PUBLISHERS,4TH EDN.
KUMUD DESAI, INDIAN LAW OF MARRIAGE AND DIVORCE,WADHA
TABLE OF CASES
INDIAN CASE LAWS
S.N
CAUSE TITLE
CITATION
(2006) 7 SCC 1
6. Surya Vadanan v. St of TN
(2000)3 SCC 14
(2000)3SCC 224
(2008) 3 SCC 1
21. Githa Hariharan & Anr v. Reserve Bank of India & Anr
(1974) 4 SCC 3
27. Ajay Hasia & Ors v. Khalid Mujib Sehravardi & Ors.
CAUSE TITLE
CITATION
O
1.
2.
3.
4.
5.
6.
7.
8.
CAUSE TITLE
CITATION
O
1.
2.
3.
Kernot v. Kernot
McKee vs. McKee
L.(minors) re
1965 Ch 217
1951 1 All ER 942
1974 1 WLR 250
STATEMENT OF JURISDICTION
This writ appeal filed at the instance of Saritha under Art. 136 of the Constitution of
India, involves questioning the constitutional validity of Section 6(a) of the HMA, 1956. It also
raises a question with regard to the maintainability of a divorce petition and an interim custody
Application submitted by Saritha. It also raises the question with regard to the enforcement of a
foreign court order in India. This Court being the Curator of the Fundamental Rights is vested
with jurisdiction to entertain this writ appeal under Art 136.
10
STATEMENT OF FACTS
Raman Sundar, a Hindu scientist from Bangalore joined a University in Texas, USA after
completing his Ph.D. in India and soon acquired US citizenship. He married Saritha a Hindu
software engineer from Mysuru on June 1999. The newly married couple after spending three
months in India left for the USA where she soon acquired citizenship. They had two children,
Nirmal a boy born in 2001 and Meghana a girl born in 2005 in USA.
Their marriage started deteriorating by June 2010. The children felt the alienation of their
father who took to alcohol. In his inebriated state Raman would verbally abuse his wife and
her parents. She bore the ill-treatment silently in order to save the marriage.
In October 2014 the family came to Mysuru. Raman returned after a week while Saritha and
the children stayed behind. The parents found out about the state of affairs. After much
thinking she informed Raman of her decision to stay back in Mysuru until he reformed.
Raman returned to India apologised and got back to USA with his family but he did not
improve which caused Saritha to move back to Mysuru where she admitted her children in a
local school.
In due course she filed a petition for divorce in a Mysuru Family Court in August 2015 which
ordered for issue of notice to Raman. Simultaneously he filed a petition in USA for the
custody of his children contending that they were US citizens and he was their guardian so it
was in their best interest to return to USA, he further filed a petition for restitution of
conjugal rights. Saritha later received a custody order from US Court which she ignored. In
October 2015, Raman moved the Karnataka HC for a writ to be issued to hand over the
MEMORIAL ON BEHALF OF THE APPELLANTS
11
children. Saritha contested that the order of the US Court was passed without hearing her and
thus was not binding and that she remained the rightful guardian in India. She then moved
the Mysuru Family Court for an interim order to retain custody and Raman received a
emergency notice.
Regarding the fathers right of custody, Saritha was advised to file a Writ Petition
challenging the constitutional validity Sec.6 [a] of HMGA 1956. The HC held that the father
is natural guardian of minors; the order of US court has to be enforced in India and upheld
the constitutionality.
Saritha now approaches the SC, challenging the HC judgment concerning validity of the
afore-mentioned provisions and also the scope of obedience in India to the order passed by
the US Court and further her right as a guardian. Raman contested that the Karnataka HC
order was valid. Pursuant to the notice sent in this regard, the UOI also defended the
constitutionality of the impugned provisions.
STATEMENT OF ISSUES
1) WHETHER THE DIVORCE PETITION AND PARTICULARLY THE INTERIM
APPLICATION FOR THE CUSTODY OF THE CHILDREN FILED BY SARITHA
IN THE FAMILY COURT AT MYSURU ARE MAINTAINABLE?
2) WHETHER THE ORDER OF THE US COURT IS ENFORCEABLE IN INDIA?
3) WHETHER S.6(a) OF THE HINDU MINORITY AND GUARDIANSHIP ACT,
1956 IS CONSTITUTIONALLY VALID?
4) WHETHER THE CUSTODY OF THE CHILDREN BELONGS TO THE
MOTHER?
SUMMARY OF ISSUES:
1
It is humbly submitted that the petitioners claim is maintainable before the Courts inIndia. The
Petition is maintainable under the jurisdiction of India based on the ordinary residence principle
and the undisputable fact that the Hindu Codes enforceability solely depends upon the religion
not territory.
MEMORIAL ON BEHALF OF THE APPELLANTS
12
It is humbly submitted that the USA Courts order is not enforceable in India as it falls within the
exceptions given in S.13 of the CPC. The order passed by the US Court is not based on merits
and is in violation with the general principles of International law. It is also submitted that there
has been violation of Principles of Natural Justice and the interest of Children has not been taken
13
A Court that has no jurisdiction to entertain a petition for custody cannot pass
any order or issue any direction for the return of the child to the country from
where he has been removed, no matter such removal is found to be in violation
of an order issued by a Court in that country. The party aggrieved of such
removal, may seek any other remedy legally open to it. But no redress to such a
party will be permissible before the Court who finds that it has no jurisdiction to
entertain the proceedings.
After referring to the 5 previous decisions viz., (i) Satya v. Teja Singh
(ii) Dhanwanti
Joshi
Sharma
v.
Sushil
14
The marriage was solemnized by the Hindu Vedic rites and registered under
Hindu Marriage Act. It may be noticed that none of the provisions of Hindu
Marriage Act lay down the time and condition under which it will cease to
apply. In other words once the provisions of Hindu Marriage Act apply, it
would continue to apply as long as the marriage exists and even for dissolution
of the marriage.
In R.Sridharan v. The Presiding Officer6 the Madras High Court held:The Hindu Marriage Act does not stipulate any stringent condition that both
parties should be residing within or domiciled in the jurisdiction of India for
maintaining a petition under the Hindu Marriage Act. In fact it covers all
Hindus who are residing outside the territory to which this act extends.
S.2 of the HMA 1955, dealing with the application of the act, does not delimit its
scope based on the citizenship. S.2 read along the lines of S.19 does not mandate the
requirement of citizenship in order to file a petition in the Court for redressal of
issues born out of HMA.
Bearing in mind S.2 read with S.19(i) and S.19(iii-a), the divorce petition filed by
Saritha is maintainable before the Family Law Court at Mysuru.
1.1.2.MAINTAINABILITY OF THE INTERIM APPLICATION FOR THE CUSTODY OF
CHILDREN:
1.1.2.1. ORDINARY RESIDENCE PRINCIPLE:
S.2 of the HMGA provides that the provisions of the Act shall be in addition to, and not
derogatory of the provisions of the GWA, 1890. This provision, thus bestows the right of
applicability of the GWA, whilst interpreting the HMGA. Hence, S.9 of the GWA read in the
lights of S.2 of the HMGA, states that the jurisdiction for entertaining the application depends on
the ordinary residence.
S.9 of the GWA, 1890 formulatesa specific provision as regards to the jurisdiction of the Court to
entertain a claim for grant of custody of a minor.
"9. Court having jurisdiction to entertain application
15
(1)If the application is with respect to the guardianship of the person of the
minor, it shall be made to the District Court having Jurisdiction in the place
where the minor ordinarily resides."
It is evident from a bare reading of the above that the solitary test for determining the jurisdiction
of the court under S.9 of the Act is the `ordinary residence' of the minor. The expression used is
"Where the minor ordinarily resides".
In KuldipNayar&Ors. v. Union of India &Ors7., the expression "ordinary residence" as used
in the RPA, 1950 fell for interpretation. This Court observed:
"Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689 to
denote that the word "ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much where the person is to be
found "ordinarily", in the sense of usually or habitually and with some degree
of continuity, but whether the quality of residence is "ordinary" and general,
rather than merely for some special or limited purpose.
In the case of RuchiMajoo v. SanjeevMajoo8, the Honble SC reaffirmed the
interpretation of the term ordinary resident as enunciated by the Honble HC in various
instances9. It was held the question whether one is ordinarily residing at a given place
depends so much on the intention to make that place ones ordinary abode.
The jurisdiction of the Court under the Guardians and wards Act, is
determined by the place where the minor ordinarily resides.
By admitting her children in a school in Mysuru, and attempting to inculcate in them, the
local language by way of tuitions for the past 7 months, she has expressed her intention of
16
residing in Mysuru.Thus, the petition before the District Court of Mysuru filed by the Petitioner
is maintainable as she is an ordinary resident of the place.
1.1.2.2. WELFARE OF THE CHILDREN IS OF PARAMOUNT CONSIDERATION:
In Elizabeth Dinshaw v. Arvand M. Dinshaw10 the SC, held:Whenever a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights of the
parties but on the sole and predominant criterion of what would best serve the
interest of the minor.
It is significant to note that in case of Surya Vadanan v. St of TN 11 where the SC transferred the
petition to UK substantiating that only UK Courts have jurisdiction to adjudicate the affairs; the
UK Court after discussion with the children concluded that its best for the interest of the children
to decide the case in India and now the petitioner stands before the Coimbatore District Court.
1.2.SUBMISSION TO THE JURISDICTION OF FOREIGN COURTS:
A person who appears in response to a summons of a foreign Court has been held to have
voluntarily submitted to the jurisdiction of that Court.12
17
municipal Courts are under a constitutional compulsion to give effect to the law of their own
sovereign legislature.
2.2. DILUTION OF THE PRINCIPLE OFTERRITORIAL SOVERIGNTY:
The CPC has enunciated the concept regarding the enforceability of foreign judgements.
S.2 In this Act, unless there is anything repugnant in the subject or context,(6) "foreign judgment" means the judgment of a foreign Court;
S.13 of the CPC has enumerated a list of scenarios as to when a foreign judgement may not be
held conclusive.
S. 13: When foreign judgments are not conclusiveA foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom they
or any of them claim litigating under the same title except
a.
f.
18
accepted by the Foreign Court without any independent application of mind, merely because the
plaintiff remained exparte to the counter claim. Moreover, the plaintiff contends that there is no
discussion in the judgment, on the merits of the case and the evidence available on record. Even
a judgment rendered ex parte in India, is supposed to contain some discussion on the merits. But
there is no discussion even on the issue of interest and welfare of the child.Therefore, it is the
plaintiff's contention that the foreign judgment was not rendered on merits, making it vulnerable
for an attack under S.13(b) of CPC.
In Mohamed Kasim v. SeeniPakir Bin Ahmed 13, (referred to by the Supreme court in
International Woollen Mills14), a Full Bench of this Court held that a foreign judgment given on
default of appearance of the defendant, on the plaint allegation, without any trial or evidence, is
not a judgment given on the merits of the case within the meaning of S.13(b). But after
considering the said decision of the Full Bench, a Division Bench of this Court held in
Rajarathnam v. MuthuswamiKangani15, that though a foreign judgment might have been
passed ex parte, the decision must be deemed to be on merits, if it was passed on a consideration
of the evidence. A similar view was taken by another Division Bench inSivagaminatha Pillai v.
K.Nataraja Pillai16,that a decree of a foreign Court, even if passed ex parte, will be binding on
the parties thereto and will be conclusive under S.13, if it was passed on the evidence taken and
the decision was on consideration of the evidence. However in the instant case it is difficult to
conclude that the judgment was passed after consideration of facts and merits.
The Supreme Court approved the view of the Patna HC 17in International Woollen Mills
Case18to the effect the real test to find out whether it was on merits or not, is to see if it was
delivered as a matter of course or by way of penalty for the non-appearance of the defendant. No
13Mohamed Kasim v. SeeniPakir Bin Ahmed AIR 1927 Mad 265.
14M/S International woolen mills v. M/S Standard Wool ltd (2001) 5 SCC 265
15Rajarathnam vs. MuthuswamiKangani AIR 1958 Mad 203.
16Sivagaminatha Pillai vs. K.Nataraja Pillai AIR 1961 Mad 385.
17WazirSahu vs. Munshi Das AIR 1941 Pat 109.
19
doubt, it was pointed out therein, that merely on the basis of the presumption under Illustration
(e) of S.114 of the Evidence Act, an ex parte decree cannot be presumed to be one on merits.
Though an ex parte decree may be a decree regularly passed, it may still not be a decree on
merits. A foreign judgment would be treated as one given on merits if some evidence had been
adduced on behalf of the plaintiff and if the foreign judgment, however brief, was based on a
consideration of that evidence. It is only in cases where no evidence was adduced on the side of
the plaintiff and yet the Court proceeded to decree the suit merely because of the absence of the
defendant, either by way of penalty or in a formal manner that the judgment cannot be
considered to be one on the merits of the case. Therefore, it is the plaintiff's contention that the
foreign judgment was not rendered on merits, making it vulnerable for an attack under S.13(b),
CPC.
2.2.1.1.INTIMATE PARTNER VIOLENCE:
The ACHR has constantly been the custodian of interests of the children and has efficiently
carried its role while deciding the custody of the Children. Intimate Partner Violence and child
abuse are recognized both as public health concerns and as violations of human rights.Men who
abuse female partners are also highly likely to abuse the children of these women. Family Courts
are reported to often ignore risks posed by abusive men in awarding child custody and visitation.
2.2.2.VIOLATION OF PNJ:
The next ground of attack is that the proceedings before the foreign court were opposed to
natural justice. The English Law followed a rigid test in construing violations of PNJ.But in
India a liberal view is taken. This plea has to be considered in the light of the statutory law of
India. In Y.Narasimha Rao v. Y.Venkata Lakshmi19, the Supreme Court held:
What is stated in S.13(d) is no more than an elementary principle on which any
civilized system of justice rests. But in matters concerning family law, the Court
held that this principle has to be extended to mean something more than mere
18M/S International woolen mills v. M/S Standard Wool ltd(2001) 5 SCC 265
19Y.Narasimha Rao vs. Y.Venkata Lakshmi(1991) 3 SCC 451.
20
21
This Court in Elizabeth Dinshaw v. Arvand M. Dinshaw 21, the general principles laid down in
McKee v. McKee22 was reiterated thus;
whenever a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights of the parties
but on the sole and predominant criterion of what would best serve the interest of
the minor.
This Honble Court in Poonam Datta v. Krishna Lal Datta23, held:
Parties are directed to consider the interest of the child as paramount and do
nothing which would be adverse to its interest or affect it physically or mentally
in any manner.
InSarita Sharma v. Sushil Sharma24, the SCwhile allowing the appeal, held:
it would not be proper to be guided entirely by .the order of the Court of
that country and that the decree passed by the American Court, though a
relevant factor, cannot override the considerations of welfare of the minor
children.
In RuchiMajoo v. SanjeevMajoo25, the SC upheld :Recognition of decrees and orders passed by foreign courts remains an eternal
dilemma in as much as whenever called upon to do so, Courts in this country
are bound to determine the validity of such decrees and orders keeping in view
the provisions of S.13 of the CPCWelfare of the minor in such cases being
the paramount consideration; the court has to approach the issue regarding the
21Elizabeth Dinshaw v. Arvind M. Dinshaw (1987) 1 SCC 42.
22McKee v. McKee 1951 1 All ER 942.
23Poonam Datta v. Krishna Lal Datta 1989 Supp(1) SCC 587
24Sarita Sharma vs. Sushil Sharma 2000 (3) SCC 14.
25RuchiMajoo v. SanjeevMajoo(2011) 6 SCC 479.
22
23
Constitution, full faith and credit is required to be given in each State, to the
public Acts, Records and Judicial Proceedings in every other State..No
country is bound by comity to give effect in its Courts to the laws of another
country which are repugnant to its own laws and public policy.
In Dhanwanti Joshi v. MadhavUnde29 the SC reiterated, the decision in McKee
v. McKee30that the order of the foreign Court would yield to the welfare of the
child and that comity of Courts demanded not its enforcement, but its grave
consideration.
In Ruchi Majoo v. SanjeevMajoo31:
repatriation of the minor .. on the principle of `comity of courts' does not
appear to us to be an acceptable option worthy of being exercised at this
stage.Interest of the minor shall be better served if he continued in the
custody of his mother.
24
25
The differentia which is the basis of the classification and the object of the act
are distinct things and what is necessary is that there must be a nexus between
them.
To challenge an arbitrary action under Article 14, the Petitioner does not have to show that there
is someone else similarly situated as he himself, or that he has been dissimilarly treated.
In A.L. Kalra37, the SC held that any action that is arbitrary must necessarily involve the
negation of equality.
One need not confine the denial of equality to a comparative evaluation
between two persons to arrive at a conclusion of discriminatory treatment. An
action per se arbitrary itself denies equal protection by law.
In explaining the equalizing principle as a founding faith which must not be subjected to
a narrow pedantic or lexographic approach and that no one should attempt to truncate its
scope and meaning, the Court held in E.P. Royappa v. State of Tamil Nadu &Anr.38
Equality is a dynamic concept with many aspects and dimensions and it
cannot be cribbed, cabined and confined within traditional and doctrinaire
limitsequality is antithetic to arbitrariness. In fact equality and arbitrariness
are sworn enemies... Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore
violative of article 14.
Additionally, in A.P. Aggarwal v. Govt. of NCT of Delhi &Anr.39, the Court held,
Every state action, in order to survive, must not be susceptible to the vice of
arbitrariness. This is the crux of article 14 and basic to the rule of law.
26
TO
GUARDIANSHIP AND
CUSTODY
OF
MINOR
AND
27
Emphasizing upon the above held values, Khanna.J observed in A.D.M.Jabalpur v. S.Shukla41
that
Rule of law is the antithesis of arbitrariness.Everywhere it is identified with
the liberty of the individual.
Further, the concept of basic structure which evolved from Rule of Law and was conceived by
the Honble SC in KesavanandaBharati v. State of Kerala42 has enshrined in it the concept of
equality and non-arbitrariness.
3.3.INSTANCES WHERE THE SC HAS STRUCK DOWN LAWS AS ENACTED
AGAINST GENDER EQUALITY:
The SC has always been the sentinel on the qui vive of the Constitution and has ensured gender
equality. It has actively propagated women rights by striking down the legislation that
discriminate women without any intelligible differentia. In multifarious instances this Honble
Court has ensured equality and rule of law from Air India v. NergeshMeerza43 until Municipal
Corporation of Delhi v. Female Workers &Anr 44. In Air India v. NergeshMeerza 45, this
Court was faced with the constitutional validity of Regulation 46(i)(c) of Air India Employees'
Service Regulations; , the SC struck down the provision of rules which stipulated termination of
service of an air hostess on her first pregnancy as it arbitrary and abhorrent to the notions of a
civilized society.
28
In Randhir Singh v. UOI &Ors.46,this Court held that non-observance of the principle of 'equal
pay for equal work' for both men and women under Art.39(d) of the Constitution amounted to
violation of Article 14 and 16.
In MadhuKishwar&Ors. V. State of Bihar &Ors.47, the provisions in Chotanagpur Tenancy
Act, 1908 providing succession to property in the male line was struck down.
In Vishaka& Ors. v. State of Rajasthan &Ors.48, the SC held that sexual harassment of
working women at her place of an employment amounts to violation of rights of gender equality
and right to life and liberty which is clear violation of Articles 14, 15 and 21 .
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr.49andAnujGarg
v. Hotels Association of India50this Honble Court has guaranteed gender equality.
A functioning modern democratic society should ensure freedom without discriminating on the
basis of sex, race, caste or any other like basis. ROMANTIC PATERNALISM must end by
application of ANTI STEREOTYPICAL PRINCIPLE.
3.4.INTERNATIONAL OBLIGATIONS TO ENSURE EQUALITY
With regard to International treaties and conventions, the UOI has an obligation arising from Art
and 51 and Art 253 of our Constitution to pay heed, implement and bring into force any
International treaties or conventions that have been ratified. India being a signatory to the
Convention on the Elimination of all forms of Discrimination Against Women and the
International Covenant on Civil and Political Rights has an obligation to obey its Articles and
rules.
46Randhir Singh v. Union of India &Ors. (1982) 1 SCC 618.
47MadhuKishwar&Ors. v. State of Bihar &Ors.(1996) 5 SCC 125.
48Vishaka&Ors. v. State of Rajasthan &Ors. (1997) 6 SCC 241.
49In Municipal Corporation of Delhi v. Female Workers (Muster Roll) &Anr(2000) 3 SCC 224.
50AnujGarg v. Hotels Association of India (2008) 3 SCC 1.
29
30
31
PRAYER
For the reasons aforesaid, in the light of issues raised, arguments advanced and authorities cited,
it is humbly submitted before this Honble Court that it may be pleased to
Direct the parties to redress the issue in the Family Court at Mysuru.
Repress the order of the US Court.
Declare S.6(a) of Hindu Minorities and Guardianship Act, 1965 as unconstitutional.
Pass interim custody order in favour of Saritha.
And pass such orders proper in the circumstances of the case with costs, which this Court may
deem fit, in the light of equity, justice and good conscience for which the counsel may forever
pray.
32