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NEF LAW COLLEGE INTRA MOOT COMPETITION 2016

ANIL VS RASHMI

NEF LAW COLLEGE INTRA MOOT COMPETION, 2016


ANIL VS RASHMI

IN THE HONBLE GAUHATI HIGH COURT


SECTION 19 (1), FAMILY COURTS ACT,1984

APPEAL NO../2016

ANIL..APPELLANT
VS
RASHMI..RESPONTENDENT

NEF LAW COLLEGE INTRA MOOT COMPETITION, 2016


TEAM CODE -05

MEMORIAL ON BEHALF OF THE APPELLANT

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

INDEX
1.
2.
3.
4.
5.
6.
7.
8.

LIST OF ABBREVIATIONS
LIST OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES RAISED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

LIST OF ABBREVIATIONS
AIR...............................................................................................................All India Reporter
SC.......................................................................................................................Supreme Court
CPC................................................................................................The Code of Civil Procedure
PAS..............................................................................................Parental Alienation Syndrome
SEC/Sec...........................................................................................................................Section
LIST OF AUTHORITIES
I.

II.

III.

LIST OF STATUTES :
The Hindu Marriage Act, 1955
The Hindu Minority and Guardianship Act,1956
The Guardian and Wards Act, 1890
The Family Courts Act,1984
LIST OF INTERNET SITES
www.wikipedia.org.
www.indiankanoon.org
www.terminatorak.wordpress.com
www.fact.on.ca
LIST OF BOOKS REFERENCED
Hindu Law : Principles and Precedents N.R. Raghavachariar

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

STATEMENT OF JURISDICTION
The Honble High Court of Gauhati has the jurisdiction to hear an appeal under section 19(1) of
The Family Courts Act, 1984 on the order passed by the Udalguri Family Court (Trial Court).

STATEMENT OF FACTS
Anil and Rashmi was married on 31st Jan 2004 as per the Hindu religious rites and customs. The appellant
has a son, named, Rahul who is residing with his mother Rashmi, the respondent. During the time of
marriage the Appellant was a business man in Germany and after marriage they lived together for 3
months and because of some misunderstanding Rashmi, the respondent left him, taking with her their son
Rahul. Even then Anil, the Appellant kept on visiting his child and his wife and provided Maintenance for
both of them as he loved and cared for them.Suddenly Rashmi, the respondent on the grounds of cruelty,
filed a petition for divorce in the Udalguri Family Court. At that time Rahul, the minor child was 10 years
old. The appellant knew that the respondent Rashmi was having an illegal intimacy with another person.
One of allegation of the appellant was that since the respondent was having an illegal intimacy with
another person and also the minor child Rahul, was caught twice stealing classmates belongings; further
continuance of living of the minor child with the respondent, will hamper his sons education and mental

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

health and be detrimental to the welfare of the minor child. Thereby, he had filed a original petition under
the Guardian and Wards Acts, 1890 for the custody of his 10 years old minor child. The appellant
contended that since he is also financially better than Rashmi, and is able to provide good care to the
minor child, the custody of the child should be given to him. Even after the respondent having an illegal
affair with another person the appellant filed a petition for Restitution of Conjugal Rights under Section 9
of The Hindu Marriage Act, 1955 for the welfare of his family and the minor child. The Principal Judge
of the Udalguri Family Court dismissed the appellants original petition and gave the custody of the minor
child in the hand of the respondent and also passed an ex-parte decree in favour of the respondent. Later
on it was found that the respondent contrary to the deposition made by her before the trial court that she
would not remarry got remarried immediately after the judgement of the petition filed under the Guardian
and Wards Act, 1890. Because of this reason the appellant has filed an appeal before the Gauhati High
Court for the custody of the child as he feels it would be detrimental to the interest, progress and welfare
of the child if the minor child, Rahul continued to stay with the respondent.

ISSUES RAISED:
1. Whether the Appellant Mr. Anil has locus standi to file an appeal in the High Court?
2. Will remarriage of the Respondent amounts to termination of guardianship?
3. Whether the decision of the subordinate court of dismissing the petition for Restitution of
Conjugal Rights was justified?
4. Whether the custody of the child to his mother will be detrimental to his physical and mental
welfare? And whether the financial condition of the mother shall be taken into consideration
while giving away the custody of the child?
5. Whether the act of the husband (accusations of unchastity) actually amounted to cruelty
towards his wife?

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

SUMMARY OF ARGUMENTS
ISSUE 1. WHETHER THE APPELLANT MR. ANIL HAS LOCUS STANDI TO FILE AN
APPEAL IN THE HIGH COURT?
YES, The Appellant Mr. Anil has locus standi to file an appeal in the High Court of Gauhati as
evidenced by the Section 19 (1) of the Family Courts Act, 1984 and Section 47 of the Guardians
and Wards Act, 1890.
ISSUE 2. WILL REMARRIAGE OF THE RESPONDENT AMOUNTS TO
TERMINATION OF GUARDIANSHIP?
Yes, Remarriage of the Respondent amounts to termination of guardianship as it will hamper the
welfare of the minor child and according to Section 13 (1) of The Hindu Minority and
Guardianship Act, 1956; welfare of the child is of paramount consideration.
ISSUE 3. WHETHER THE DECISION OF THE SUBORDINATE COURT OF
DISMISSING THE PETITION FOR RESTITUTION OF CONJUGAL RIGHTS WAS
JUSTIFIED
No, it was not justified because the grounds of cruelty on part of the appellant was not proved.
ISSUE 4. WHETHER THE CUSTODY OF THE CHILD TO HIS MOTHER WILL BE
DETRIMENTAL TO HIS PHYSICAL AND MENTAL WELFARE? AND WHETHER
FINCIAL CINDITION OF THWE MOTHER SHALL BE TAKEN INTO
CONSIDERATION WHILE GIVING AWAY THE CUSTODY OF THE CHILD?
Yes, the custody of the child to the respondent will be detrimental to his physical and mental
welfare as the paramount consideration is the welfare of the child. The financial condition of the
respondent should be taken into account as she is dependent on her new husband now and before
the remarriage on the appellant to provide for her and the minor child.

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

ISSUE 5. WHETHER THE ACT OF THE HUSBAND (ACCUSATIONS OF


UNCHASTITY) ACTUALLY AMOUNTED TO CRUELTY TOWARDS HIS WIFE?
No, the act of the husband did not amounted to cruelty towards his wife because his accusation
was not unfounded as evidenced that she remarried immediately after the judgement and
therefore there was truth in the appellants statements.

ARGUMENTS ADVANCED
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

ISSUE 1
1.WHETHER THE APPELLANT MR. ANIL HAS LOCUS STANDI TO FILE AN
APPEAL IN THE HIGH COURT?
The Appellant Mr. Anil has locus standi to file an appeal in the High Court of Gauhati. The
original petition under the Guardian and Wards Act, 1890 for the custody of the minor child was
filed at Udalguri Family Court which passed an order in the favour of the respondent. Thereby an
appeal will lie in the High Court of Gauhati against the order passed by the Udalguri Family
Court.
Locus Standi
In law Locus Standi is the term for the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support that
partys participation in the case. Locus Standi is the right to move the Court for Judicial
redressal and is available to those whose right has been infringed and it is the right to
bring a cause of action in the court for some grievance, harm or injury, etc.
As evidenced the appellant who is the father of the minor child, Rahul has the right to
bring a cause of action in the court for custody of his minor child.
1.1.
According to Section 19(1) of The Family Courts Act, 1984, which provides for
appeals an appeal shall lie from every order of a Family Court to The High Court both on
facts and on law. Thereby, the appellant Mr. Anil has the right to appeal the order of the
Udalguri Family Court to High Court of Gauhati.
Reproducing Section19 (1)of The Family Court Act,1984:Section 19 Appeal:- Save as provided in subsection(2) and notwithstanding anything
contained in the code of civil procedure,1908(5 of1908), or in the Code Of Criminal
Procedure ,1973(2 of1974),or in any other law, an appeal shall lie from every judgment or

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

order, not being an interlocutory order of a Family Court to the High Court both on facts and
on law.
1.2. According to Section 47 of the Guardians and Wards Act, 1890 which provides for orders
appealable, the appellant who is the father of the minor child; Rahul is entitled to submit an
appeal petition for the order of custody of his minor child under the Guardians and Wards Act,
1890 in The High Court of Gauhati.
Reproducing Section 47 of the Guardians and Wards Act, 1890:Section 47: Orders appealable :- An appeal shall lie to the High Court from an order made by a
court under section 7,appointing or declaring or refusing to a appoint or declare a
guardian,..........
1.3. According to Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 the father is
the natural guardian of a minor boy or unmarried girl above 5 yrs of age, the father is the natural
guardian of the minor, thereby the appellant who is the father of the minor child Rahul who is
10year old, has the right to file for custody of his son.
Reproducing Section 6 (a) of the Hindu Minority and guardianship Act,1956:Section 6: Natural guardians of a Hindu minor: - The natural guardians of a Hindu
Minor , in respect of the minors person as well as in respect of the minors property (excluding
his or her undivided interest in joint family property), are
(a) In case of a boy or an unmarried girl- the father and after him the mother provided
that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
Therefore, the appellant has the right to locus standi to file an appeal in the high court.

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

ISSUE 2
2. WILL REMARRIAGE OF THE RESPONDENT AMOUNTS TO TERMINATION OF
GUARDIANSHIP?
Yes, the remarriage of the respondent will amount to termination of her guardianship, because
the paramount matter is the welfare of the child which will be hampered because of the
remarriage of the respondent.
2.1.
According to Section 13 of the Hindu Minority and Guardianship Act 1956 the
welfare of the minor is the paramount consideration in deciding the custody of the child.
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

As we have seen the father is financially better than the respondent Rashmi and also the
father has not remarried with another, so he will be taking a good care of the child. As
from the fact it is clear that the respondent Rashmi has remarried to another person just
immediately after the judgement contrary to the deposition made by her so it is clear that
she is fickle-minded and not firm in her decisions; so it is clear that she may not take
good care of the child and not put his welfare in forefront. Most importantly the father i.e.
the step father may not take good care just like his own father and it will hamper the mind
of the child and also it will hamper the mental state of the minor. Also because of her
remarriage the mother may not be able to give personal attention to the child which
would hamper his physical and mental health and may on birth of child from her new
marriage neglect Rahul. Therefore because of the remarriage her custody should be
terminated.
Reproducing the Section 19 of The Hindu Minority And the Guardianship act 1956
(1) In the appointment or declaration of a person as a guardian of a Hindu minor by
Court , the welfare of the minor shall be the paramount consideration.
In the case law THRITY HOSHIE DOLIKUKA vs HOSHIAM DOLIKUKA1 , this court has
held under: the principles of law in relation to the custody of a minor appear to be well
established. It is well settled that any matter concerning a minor , has to be considered and
decided only from the point of view of the welfare and interest of the minor. In dealing with a
matter concerning with a minor , the court has a special responsibility and it is the duty of the
court to consider the welfare of the minor and to protect the minor interest.

1 AIR 1982 SC 1276


MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

According to Hindu law the natural guardian of a minor child is the father and the court while
considering the grant of the custody of the minor to him has to take into account other factor as
well the capacity of the father to look after the childs needs and to arrange his upbringings. It is
also to be seen whether the father is in position to give personal attention to the childs overall
development. If the court forms the impression that the mother is a normal and independent
woman and shows no indication of imbalance of mind in her then in the end the custody of the
child should not be refused to mother; however she is not an independent woman nor that
sensible in mind custody should be given to father.

ISSUE 3
3 WHETHER THE DECISION OF THE SUBORDINATE COURT OF DISMISSING
THE PETITION FOR RESTITUTION OF CONJUGAL RIGHTS WAS JUSTIFIED
No, the decision of dismissing the petition for restitution of the conjugal rights was not justified.
The ground of cruelty not been proved in the court of law and the petition was dismissed for
default. No one can take advantage of ones wrong, however since the grounds of cruelty on part

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

of the appellant was not proved, the subordinate courts decision to dismiss the petition for
Restitution of Conjugal rights was not justified.

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

ISSUE 4
4 WHETHER THE CUSTODY OF THE CHILD TO HIS MOTHER WILL BE
DETRIMENTAL TO HIS PHYSICAL AND MENTAL WELFARE? AND WHETHER
FINCIAL CINDITION OF THWE MOTHER SHALL BE TAKEN INTO
CONSIDERATION WHILE GIVING AWAY THE CUSTODY OF THE CHILD?
Yes, the custody of the child to the respondent will be detrimental to his physical and mental
welfare as the paramount consideration is the welfare of the child. The financial condition of the
respondent should be taken into account as she is dependent on her new husband now and before
the remarriage on the appellant to provide for her and the minor child.
1.1 According to the section 13(1) of the Hindu Minority and Guardianship Act which lays down
the paramount consideration is the welfare of the child, the continued custody of the child to
his mother will be detrimental to his physical and mental welfare because the minor child
was caught twice stealing others personal belongings in his mothers care and regarding the
mental welfare if the child continues to live with the mother and the step father he may suffer
from depression as he may be deprived from personal care and love of his natural father
because the child may not be allowed to meet the father and may develop PAS syndrome2
and suffer from depression.
Reproducing the section 13 of The Hindu Minority And Guardianship Act 1956
Welfare of minor to be paramount consideration;
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court,
the welfare of the minor shall be the paramount consideration.
1.2 Section 17 of the Guardians and Wards Act 1890, which provides for the matters to be
considered by the court in appointing guardian and it in considering what will be for the
welfare of the minor , the courts shall have regard to the age , sex, and religion of the minor ,

2 Remarriage as a trigger of Parental Alienation Syndrome Richard.A.Warshak ,the American Journal


of Family Therapy
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

the character and capacity of the proposed guardian and his nearness of kin to the minor , the
wishes, if any , of a deceased parent, and any existing or previous relation of the proposed
guardian with the minor or his property. So regarding the character of the appellant it is very
much clear from the fact that he has not remarried to another. Another point is that even after
the respondent, having an illegal affair with another person the appellant provided
maintenance to both of them which implies that he loved and cared for his family and also
his minor child as he frequently used to visit them. Regarding the financial condition of the
mother, she was receiving maintenance from the appellant so it shows that she was dependant
on the appellant to provide for the basic needs of the minor whereas the appellant is
financially sound and has capacity to take good care of the child
Reproducing the section 17 of the Guardian and Wards Act 1890
Sec 17: Matters to be considered by the court in appointing guardian. - ...............................
In considering what will be for the welfare of the minor, the court shall have regard to the
age, sex and religion of the minor, the character and capacity of the proposed guardian and
his names of kin to the minor the wishes, if any, of a deceased parent, and any existing or
previous relation of the proposed guardian with the minor and his property.
In the case law SHALEEN KABRA V SHIBANI KABRA3, custody of both the children was
given to the father as the mother was financially not able to take care of the children and their
education.

ISSUE 5
5. WHETHER THE ACT OF THE HUSBAND (ACCUSATIONS OF UNCHASTITY)
ACTUALLY AMOUNTED TO CRUELTY TOWARDS HIS WIFE?
No, the act of the husband did not amounted to cruelty towards his wife because his
accusation was not unfounded as evidenced that she remarried immediately after the
3 AIR 2012 SC 2467
MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

judgement. And moreover it does not amount to mental cruelty. Mental cruelty as a ground
for divorce is provided by Section 13 (i-a) of The Hindu Marriage Act, 1955. It also implies
that normal wear and tear of marriage is not cruelty; the conduct must be weighty and grave
enough to cause such mental agony as to make the parties unable to live together. However,
the appellant and the respondent have been living separate for many years and hence there is
no possibility of the appellant causing such mental agony and pain to the respondent that it
would amount to mental cruelty.

MEMORIAL ON BEHALF OF THE APPELLANT

NEF LAW COLLEGE INTRA MOOT COMPETITION 2016


ANIL VS RASHMI

PRAYER
In the light of the issues raised, arguments advanced, cases citied in front of Honble High Court of
Gauhati, the appellant requests this Honourable Court
1. Entertain the appeal petition.
2. Grant the custody of the minor child, Rahul to the Appellant.
3. May grant any other reliefs as the Honble Court may deem fit in the light of Justice, Equity and
Good Conscience .
For which the Counsels on behalf of the Appellant will forever be duty - bound and obliged.

MEMORIAL ON BEHALF OF THE APPELLANT