ANMCC2016 Respondent

TEAM CODE:
011
BEFORE THE HONBLE SUPREME COURT OF INDIA

(UNDER ART.136 OF THE CONSTITUTION OF INDIA)
W.A.(CIVIL) NO:
OF 2015
In the matter of:

Saritha Paramshetti
Appellants
V.
Raman Sundar & Anr
Respondents
MEMORIAL ON BEHALF OF THE RESPONDENTS

On submission
------------------
TABLE OF CONTENTS
SUBJECT
PAGE
NO
LIST OF ABBREVIATIONS
3, 4
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED
B. LIST OF STATUTES REFERRED
C. LIST OF JOURNALS REFERRED
D. LIST OF WEBSITES REFERRED
E. LIST OF REPORTS REFERRED
LIST OF CASES REFERRED
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
10
SUMMARY OF ARGUMENTS
10
ARGUMENTS ADVANCED
11
PRAYER
28
LIST OF ABBREVATIONS
EDN
-EDITION
AIR
- ALL INDIA REPORTER
ART.
- ARTICLE
C.J.
- CHIEF JUSTICE
DPSP
- DIRECTIVE PRINCIPLE OF STATE POLICY
FR
- FUNDAMENTAL RIGHTS
HONBLE
- HONOURABLE
ICCPR
- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS
UDHR
-UNIVERSAL DECLARATION ON HUMAN RIGHTS
I.P.C.
- INDIAN PENAL CODE
ANR
-ANOTHER
ORS.
- OTHERS
S.
- SECTION
SC
- SUPREME COURT
HC
- HIGH COURT
SCALE
- SUPREME COURT ALMANAC
SCC
- SUPREME COURT CASES
ST.
- STATE
V.
-VERSUS
NO.
- NUMBER
PARA
-PARAGRAPH
CPC
- CODE OF CIVIL PROCEDURE
HMA
-HINDU MARRIAGES ACT
HMGA
-HINDU MINORITY AND GUARDIANSHIP ACT
GWA
-GUARDIANSHIP AND WARDS ACT
UK
-UNITED KINGDOM
TN
-TAMIL NADU
ACHR
-AMERICAN CONVENTION ON HUMAN RIGHTS
PNJ
-PRINCIPLES OF NATURAL JUSTICE
DRC
-DECLARATION ON RIGHTS OF CHILD
ICESR
-INTERNATIONAL CONVENTION ON ECONOMICAL AND SOCIAL

RIGHTS
UNCRC
-UNITED NATIONS CONVENTION ON RIGHTS OF CHILD
FR
-FUNDAMENTAL RIGHTS
U.S.A
-UNITED STATES OF AMERICA
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED:
D.D.BASU,SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA
NAGPUR, 14TH EDN. (2009).

ARVIND. P .DATAR, DATAR ON CONSTITUTION OF INDIA, WADHWA &CO
NAGPUR, EDN (2001).

V.N.SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK CO, 12TH EDN.
P.M.BAKSHI, THE CONSTITUTION OF INDIA, UNIVERSAL LAW PUBLISHING
CO. 12TH EDN(2013).

OXFORD DICTIONARY,OXFORD UNIVERSITY PRESS.
CHESHIRE AND NORTH, PRIVATE INTERNATIONAL LAW, OXFORD, 13TH EDN.
DICEY,MORRIS AND COLLINS, THE CONFLICT OF LAWS, SWEET AND
MAXWELL, 14TH EDN.

MULLA, THE CODE OF CIVIL PROCEDURE, LEXIS NEXIS, 16TH EDN.
PARAS DIWAN LAW OF ADOPTION AND GUARDIANSHIP, UNIVERSAL
PUBLISHERS, 4TH EDN.

KUMUD DESAI, INDIAN LAW OF MARRIAGE AND DIVORCE,WADHA
PUBLISHERS, 7TH EDN.

DAVID.H.VERMON, LOUSIE WEINGBERG, WILLIAM L. REYNOLDS, WILLIAM
R. RICHMAN, CONFLICT OF LAWS, LEXIS NEXIS, 2ND EDN.
B. LIST OF STATUES REFERRED:

1. THE CONSTITUTION OF INDIA, 1950.
2. THE CODE OF CIVIL PROCEDURE, 1908.
3. HINDU MINORITIES AND GUARDIANSHIP ACT, 1956.
4. HINDU MARRIAGES ACT, 1955.
5. GUARDIANS AND WARDS ACT, 1890.
C. LIST OF JOURNALS REFERRED:
1. ALL INDIA REPORTER (AIR)
2. SUPREME COURT CASES (SCC)
3. SUPREME COURT ALMANAC (SCALE)

4. CRIMINAL LAW JOURNAL (Cri. L.J)
5. SUPREME COURT CASES CRIMINAL(SCC(Cri))
6. SUPREME COURT REPORTER(SCR)
D. LIST OF WEBSITES REFERRED:
1. www.manupatra.com
2. www.scconline.com
3. www.indialawsite.com
4. www.indiankanoon.org
5. www.legalserviceindia.com
6. www.lawcornell.com
E. LIST OF REPORTS REFERRED:

1. LAW COMMISSION REPORTS
TABLE OF CASES
INDIAN CASE LAWS:
S.NO
CAUSE TITLE
CITATION
.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Government of Andhra Pradesh v. P. Laxmi. Devi

ChiranjitLal Chowdhury v. UOI &Ors
M/s. B.R. Enterprises v. State of U.P. & Ors
State of Bombay v. F.N. Bulsara
MahantMoti Das v. S.P. Sahi
State of Bihar and others v. Bihar Distillery Ltd
GithaHariharan&Anr. v. Reserve Bank of India &Anr
Quarry Owners Association v. State of Bihar
Union of India v. Filip Tiago De Gama
Delhi Transport Corporation v. D.T.C. Mazdoor Congress
Surya Vadanan V. St Of TN
Ravichandran v. UOI
Surindher Kaur Sandhu v. Harbax Singh Sandhu
Dhanwanti Joshi v. Madhav Unde
Elizabeth Dinshaw v Arvand M Dinshaw
Shilpa Agarwal v. Aviral Mittal
(2008) 4 SCC 720

AIR 1951 SC 41
(1999) 9 SCC 700
AIR 1951 SC 318
AIR 1959 SC 942
(1997) 2 SCC 453
(1999) 2 SCC 228
(2000) 8 SCC 655
(1990) 1 SCC 277
(1991) Supp 1 SCC 600
(2015) 5 SCC 450
(2010) 1 SCC 174
(1984) 3 SCC 698
(1998) 1 SCC 112
AIR 1987 SC 3
2010 (3) SCC 169
FOREIGN CASE LAWS:

S.NO
CAUSE TITLE
CITATION
.
1.
ReR (Minors)
1981 (2) FLR 416 (CA)
STATEMENT OF JURISDICTION
This writ appeal filed at the instance of Saritha under Art. 136of 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 filed by Saritha.It also raises a question disputing 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 petition under Art 136.The respondents disagree with the
maintainability of the petition.
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 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
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 pass 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 ARE CONSTITUTIONALLY VALID?
SUMMARY OF ARGUMENTS
1
It is humbly submitted that the petitioners claim is not maintainable before the Courts in India.
By reason of the Modern theory of Conflict of laws read with the most intimate contact and
closest concern doctrines, and placing emphasis on parens patriae jurisdiction, and considering
the welfare of the children, it is submitted so.
It is humbly submitted that the USA Courts order is enforceable in India. Taking into
consideration that none of the provisions of Section 13 of the CPC have been violated, and on
account of the principle of Comity of Courts and Comity of Nations. It is also submitted that for
the welfare of the children, it would be in their best interests to conduct a summary inquiry.
It is humbly submitted that S.6(a) of the Hindu Minority and Guardianship Act 1956 is
constitutional. This can be substantiated by the accepted principle of presumption of
Constitutionality and the universally accepted principle of reading down of a law.
ARGUMENTS ADVANCED
1.MAINTAINABILITY OF THE PETITION BEFORE FAMILY COURT AT MYSURU:
10
1.1.MODERN THEORY OF CONFLICT OF LAWS:

The existence of jurisdiction confers upon the Court, the authority to adjudicate any case referred
to it. Blacks Law Dictionary defines Jurisdiction as the power and authority constitutionally
conferred upon a Court or Judge to pronounce the sentence of the law.Conflict of laws, also
called Private International Law, is the existence of different legal traditions, different specific
rules of private law and different systems of private law, all of which are administered by Court
systems similarly subject to different rules and traditions of procedure. The Honble Court has
enunciated the modern theory of conflict of laws in multifarious instances.
In Surya Vadanan V. State OfTamil Nadu1, the SC has explained the modern theory of conflict
of laws:
The modern theory of the conflict of laws recognizes or at least prefers the
jurisdiction of the State which has the most intimate contact with the issues
arising in the case.
There may be cases, as has happened in the present appeal, where one parent invokes the
jurisdiction of a Court the question arises regarding which Court has the maintainability.
The spouses in this case had made England their home where this boy was
born to them. The father cannot deprive the English Court of its jurisdiction to
decide upon his custody by removing him to IndiaThe fact that the
matrimonial home of the spouses was in England, establishes sufficient
contacts or ties with that State in order to make it reasonable and just for the
Courts of that state to assume jurisdiction to enforce obligations which were
incurred therein by the spouses.
In Ravichandran v. UOI2 a full bench upheld the principle of Conflict of Laws by
reiterating the Judgment in Surindher Kaur Sandhu v. Harbax Singh Sandhu3, the SC
held:
1Surya Vadanan V. State Of Tamil Nadu(2015) 5 SCC 450.
2Ravichandran v. UOI(2010) 1 SCC 174.
11
The modern theory of Conflict of Laws recognises and, in any event, prefers the
jurisdiction of the State which has the most intimate contact with the issues
arising in the case. Jurisdiction is not attracted by the operation or creation of
fortuitous circumstances such as the circumstance as to where the child, whose
custody is in issue, is brought or for the time being lodged. To allow the
assumption of jurisdiction by another State in such circumstances will only
result in encouraging forum-shopping. Ordinarily, jurisdiction must follow
upon functional lines. That is to say, for example, that in matters relating to
matrimony and custody, the law of that place must govern which has the closest
concern with the well-being of the spouses and the welfare of the off springs of
marriage.
In V. Ravichandrans Casea full bench of this Court further held:
The facts and circumstances noticed above leave no manner of doubt that
merely because the child has been brought to India by Respondent 6, the
custody issue concerning minor child Adithya does not deserve to be gone into
by the Courts in India and it would be in accord with principles of comity as
well as on facts to return the child back to the United States of America from
where he has been removed and enable the parties to establish the case before
the courts in the native State of the child i.e. the United States of America for
modification of the existing custody orders. There is nothing on record which
may even remotely suggest that it would be harmful for the child to be returned
to his native country.
InReR (Minors) 1981 (2) FLR 416 (CA)4 it has been firmly held that the concept of
forum convenience has no place in Wardship jurisdiction. This English law principle was
reiterated in the case of Dhawanthijoshi v. MadhavUnde5 by this Honble Court.
3Surindher Kaur Sandhu v. Harbax Singh Sandhu(1984) 3 SCC 698.
4ReR (Minors) 1981 (2) FLR 416 (CA).
5Dhawanthijoshi v. MadhavUnde(1998) 1 SCC 112.
12
1.1.1.MOST
INTIMATE
CONTACT
DOCTRINE
AND
CLOSEST
CONCERN
DOCTRINE:
As held by the SC in a plentitude of judgments, it is an undisputable fact that in case of private
international law disputes, the jurisdiction is based on the most intimate contact doctrine and
the closest concern doctrine.
In Surya Vadanan v. State of Tamil Nadu6, the Court further elaborated on the
importance of the most intimate contact doctrine and the closest concern doctrine. According
to the most intimate contact doctrine, the welfare of the child is of paramount importance.
Hence, to protect the interest of the child, the Court which has the most intimate contact or
closest concern with the child should conduct the proceedings.
In case of Shilpa Agarwal v. Aviral Mittal7 the Court adjudicated the jurisdiction dispute based
on the aforesaid principle and held:
The child was a foreign national; both parents had worked for gain in the
U.K. and both had acquired permanent resident status in the U.K. Since the
foreign Court had the most intimate contact with the child and the parents, the
principle of "comity of courts" required that the foreign Court would be the
most appropriate court to decide which parent would be best suited to have
custody of the child.
In Surya Vadanan v. St of TN, the SC reiterated jurisdiction should be based on most intimate
contact doctrine and held:
There is no doubt that the foreign Court has the most intimate contact with
Mayura and her children and also the closest concern with the well-being of
Mayura, Surya and their children. That being the position even though Mayura
did not violate any order of the foreign Court when she brought her children to
India, her continued refusal to abide by the interim and interlocutory order of
6Surya Vadanan v. State of Tamil Nadu(2015) 5 SCC 450.
7Shilpaagarwal v. AviralMittal 2010 (3) SCC 169.
13
the foreign Court is not justified and it would be certainly in the best interests
and welfare of the children if the foreign Court, in view of the above, takes a
final decision on the custody of the children at the earliest. The foreign Court
undoubtedly has the capacity to do so.
In Surindher Kaur Sandhu v. Harbax case 8 , this Honble Court went a pace further
and reasoned the importance of Closest Concern Doctrine, it held:
A foreign Court having the most intimate contact and the closest concern with
the child would be better equipped and perhaps best suited to appreciate the
social and cultural milieu in which the child has been brought up rather than a
domestic court. This is a factor that must be kept in mind.
In Elizabeth Dinshaw v.Arvindh M Dinshaw9., this Court held that
..It was the duty of Courts in all countries to see that a parent doing wrong by
removing children out of the country does not gain any advantage by his or her
wrongdoing.
This duty was further espoused by citing Re H. (infants)10 where the Court directed that:
since the children were American children and the (1987) 1 SCC 42 American
Court was the proper court to decide the issue of custody, and as it was the duty
of Courts in all countries to see that a parent doing wrong by removing children
out of their country did not gain any advantage by his or her wrongdoing, the
Court without going into the merits of the question as to where and with whom
the children should live, would order that the children should go back to
America.
This practice was sustained by the SC in Ravichandrans case.
1.2.PARENS PATRIAE AND INTEREST OF THE CHILD:
8Surindher Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698.

9Elizabeth Dinshaw v. Arvindh M DinshawAIR 1987 SC 3 14, 86, 87, 89, 92.
10Re H. (infants) (1966) 1 All ER 886
14
In Surya Vadanan v. St of TN11 the Court enunciated the duty of the Courts while deciding the
custody of children and held:
..we are concerned with two principles in a case such as the present. They are
(i) The principle of comity of courts and (ii) The principle of the best interests
and the welfare of the child. These principles have been referred to
"contrasting principles of law". they are contrasting in the sense of being
different principles that need to be applied in the facts of a given case.
What then are some of the key circumstances and factors to take into
consideration for reaching this final goal or final objective? First, it must be
appreciated that the "most intimate contact" doctrine and the "closest
concern" ..It is not appropriate that a domestic court having much less
intimate contact with a child and having much less close concern with a child
and his or her parents (as against a foreign court in a given case) should take
upon itself the onerous task of determining the best interests and welfare of the
child. A foreign court having the most intimate contact and the closest concern
with the child would be better equipped and perhaps best suited to appreciate
the social and cultural milieu in which the child has been brought up rather
than a domestic Court. This is a factor that must be kept in mind.
In Ravichandrans case the decision in re. L (minors) case was referred to and acknowledged by
this Honble Court:
Where the children were foreign children, who had moved in a foreign home,
their life should continue in what were their natural surroundings, unless it
appeared to the court that it would be harmful to the children if they were
returned.
It would be better for the child that those merits should be investigated in a
Court in his native country than that he should spend in this country the period
which must necessarily elapse before all the evidence can be assembled for
11Surya Vadanan v. St of TN(2015) 5 SCC 450.
15
adjudication here. Anyone who has had experience of the exercise of this
delicate jurisdiction knows what complications can result from a child
developing roots in new soil, and what conflicts this can occasion in the child's
own life. Such roots can grow rapidly. An order that the child should be
returned forthwith to the country from which he has been removed in the
expectation that any dispute about his custody will be satisfactorily resolved in
the courts of that country may well be regarded as being in the best interests of
the child.
2.ORDER OF FOREIGN COURT ENFORCEABLE:
2.1.ENFORCEABILITY OF THE FOREIGN ORDERS AS PER INDIAN STATUTES:
The enforceability of foreign orders in a country is always dubious. It cannot be given absolute
enforceability as every nation is by itself a sovereign power. There is always a war between
sovereigntyof nation and cooperation among the nations. This arguable point can be decided in
the lights of S.13 and S.14 of the CPC. It states that in general any foreign order passed is
respected and lists instances when the foreign orders cannot be enforced.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 : 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.
Where it has not been pronounced by a Court of competent jurisdiction
b.
Where it has not been given the merits of the case
c.
Where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognize the law of India in cases in
which such law is applicable.
16
d.
Where the proceedings in which the judgment was obtained or opposed to
natural justice
e.
Where it has been obtained by fraud.
f.
Where it sustains a claim founded on a breach of any law in force in India.
S.14 Presumption as to foreign judgment:

The Court shall presume upon production of any document purporting to be a
certified copy of a foreign judgment that such judgment was pronounced by a Court of
competent jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction.
The question regarding enforceability of foreign interim order was dealt in case of Arathi
Bandi case12
Aviolation of an interim or an interlocutory order passed by a court of
competent jurisdiction ought to be viewed strictly if the rule of law is to be
maintained. No litigant can be permitted to defy or decline adherence to an
interim or an interlocutory order of a Court merely because he or she is of the
opinion that that order is incorrect - that has to be judged by a superior Court
or by another Court having jurisdiction to do so.
In Surya Vadanan v. State of Tamil Nadu13, the Court held:
..the principles for dealing with a foreign judgment are laid down in Section
13 of the Code of Civil Procedure. In passing an interim or an interlocutory
order, a foreign Court is as capable of making a prima facie fair adjudication
as any domestic Court and there is no reason to undermine its competence or
capabilityThe High Court misdirected itself by looking at the issue as a
12ArathiBandi v. BandiJagadrakshakaRao(2013) 15 SCC 790.
13Surya Vadanan v. State of Tamil Nadu(2015) 5 SCC 450.
17
matter of legal rights of the parties. Actually, the issue is of the legal obligations
of the parties, in the context of the order passed by the foreign Court.
If an interim or an interlocutory order passed by a foreign Court has to be
disregarded, there must be some special reason for doing so. What are the
situations in which an interim or an interlocutory order of a foreign Court may
be ignored? There are very few such situations. It is of primary importance to
determine, prima facie, that the foreign Court has jurisdiction over the child
whose custody is in dispute, based on the fact of the child being ordinarily
resident in the territory over which the foreign Court exercises jurisdiction. If
the foreign Court does have jurisdiction, the interim or interlocutory order of the
foreign Court should be given due weight and respect.
2.1.1.FOREIGN ORDER IS MERELY AN INTERIM ORDER:
The matters taken into account while passing of an interim order are 3 factors namely,
Irreparable Injury, Prima Facie case and Balance of Convenience. These are the ingredients
to be assessed before passing of the interim order. Interim orders can be passed ex-parte without
hearing the other party. Interim order is passed merely to avoid the confusion until the case is
adjudicated and final order is passed. It loses its enforceability once final order is delivered. The
fact that one party got interim order, in their favour cannot be used as a factor to determine the
final order.
In Shilpa Agarwal v. AviralMittal14, this Honble Court faced the same circumstance and held
We are satisfied from the materials produced before us and the submissions
made on behalf of the parties that the High Court did not commit any error in
relying on the doctrine of Comity of Courts since the question of what is in the
interest of the minor still has to be considered by the U.K. Court and the interim
order passed in the proceedings initiated by the Respondent No.1 is only of an
14Shilpa Agarwal v. Aviral Mittal 2010 (3) SCC 169.

18
interim nature with a view to return the child to the jurisdiction of the said
Court.
In Surya Vadanan v. St of TN15, the SC enunciated on comity of interim orders and held:
..There is no reason why the principle of "comity of courts" should be
jettisoned, except for special and compelling reasons. This is more so in a case
where only an interim or an interlocutory order has been passed by a foreign
Court (as in the present case). In McKee...not dealing with an interim or an
interlocutory order but a final adjudication. The applicable principles are
entirely different in such cases. .. In passing an interim or an interlocutory
order, a foreign Court is as capable of making a prima facie fair adjudication
as any domestic Court and there is no reason to undermine its competence or
capability..An interim or an interlocutory is precisely what it is - interim or
interlocutory - and is always subject to modification or vacation by the court
that passes that interim or interlocutory order. There is no finality attached to
an interim or an interlocutory order.
Arguendo, the foreign orders passed do not fall within the exception given under S.13 of
the CPC as there was a summon sent by the Texas Court to Saritha which she did not
obey and the interim orders were passed ex-parte. The order does not fall under the other
exceptions under S.13 of CPC.
2.2.COMITY OF COURTS AND COMITY OF NATIONS:
COMITY OF NATIONS is recognition of fundamental legal concepts that stems from mutual
convenience as well as respect and is essential to the success of international relations.
JUDICIAL COMITY is the granting of reciprocity to decisions or laws by one state or
jurisdiction to another. The Indian Judiciary has always been an advocate for the principle of
Comity of Courts by their act of respecting foreign judgments whenever it deems fit. This
principle of Comity of Courts is indisputable and is acknowledged in the CPC.
15Surya Vadanan v. St of TN(2015) 5 SCC 450.
19
In various occasions this Honble Court has delivered judgments complying with this doctrine.
This Honble Court has settled custody disputes by enforcing the foreign orders.
In Surya Vadanan v St of TN16:
There is no reason why the principle of "comity of courts" should be jettisoned,
except for special and compelling reasons. This is more so in a case where only
an interim or an interlocutory order has been passed by a foreign Court... In
passing an interim or an interlocutory order, a foreign Court is as capable of
making a prima facie fair adjudication as any domestic Court and there is no
reason to undermine its competence or capability The HC misdirected itself
by looking at the issue as a matter of legal rights of the parties. Actually, the
issue is of the legal obligations of the parties.
The Court also explained the principle of reciprocity where it held that since we expect the
Foreign Court to respect our orders, we must equally respect their orders. Further if an interim or
an interlocutory order passed by a foreign Court has to be disregarded, there must be some
special reason for doing so.
In RaviChandran v. Union of India17, the SC held:merely because the child has been brought to India...the custody issue
concerning minor child.. does not deserve to be gone into by the courts in India
and it would be in accordance withthe principles of comity as well as on facts to
return the child back to the United States of America from where he has been
removed and enable the parties to establish the case before the courts in the
native State of the child.
Further there is nothing on record which may even remotely suggest that it would be harmful for
the child to be returned to his native country.Hence, based on the principle of Comity of Courts,
the Foreign Court has sufficient rights to adjudicate the present case.
16Surya Vadanan v. St of TN (2015) 5 SCC 450.
17Ravi Chandran v. Union of India(2010) 1 SCC 174.
20
2.3.SUMMARY INQUIRY:
In the event of contradiction with reference to the determination of jurisdiction between two
Courts in different nations, two kinds of inquiries may be conducted Summary or elaborate. In
the case of a summary inquiry, the court would return custody to the country from which the
child had been removed, unless such return is shown to be harmful to the child. In case of order
of summary return, all aspects of the childs welfare would be investigated by the court where
the matrimonial home was situated. It is decided by agreeing on what would be in the best
interest of the children.
In Surya Vadananscase18, the Court held:..one of the factors to be kept in mind in exercise of summary jurisdiction in
the interest of child is that application for custody/return of the child is made
promptly and quickly after the child has been removed. This is so because any
delay may result in child developing roots in the country to which he has been
removedHowever, if there is a pre-existing order of a foreign Court of
competent jurisdiction and the domestic court decides to conduct an elaborate
inquiry (as against a summary inquiry), it must have special reasons to do so.
In Dhanwanti Joshi v. MadhavUnde19, the Supreme Court held:The Andhra Pradesh High Court has decided to exercise jurisdiction
summarily and directed the appellant to return the child to the U.S.A. This
course is absolutely permissible...It was observed that despite the fact that the
respondent had been staying in India for more than 2 years, she has not
pursued any legal proceeding for the sole custody of the minor child or for the
declaration that the orders passed by the American Courts concerning the
custody of minor child are null and void and without jurisdiction. Therefore, in

19Dhanwanti Joshi v. MadhavUnde(1998) 1 SCC 112.
21
our opinion, the High Court of Andhra Pradesh cannot be said to have acted
erroneously.
InSurya Vadanan v. State of Tamil Nadu,it was further held:
While deciding whether a summary or an elaborate inquiry should be
conducted, the domestic Court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by the
foreign Court.
(b) The existence of special reasons for repatriating or not repatriating the
child to the jurisdiction of the foreign Court.
(c) The repatriation of the child does not cause any moral or physical or social
or cultural or psychological harm to the child, nor should it cause any legal
harm to the parent with whom the child is in India. There are instances where
the order of the foreign Court may result in the arrest of the parent on his or
her return to the foreign country.[35] In such cases, the domestic Court is also
obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the concerned foreign Court or
the concerned domestic Court is also relevant. If the time gap is unusually large
and is not reasonably explainable and the child has developed firm roots in
India, the domestic Court may be well advised to conduct an elaborate inquiry.
Deliberating on the fact that the children, Nirmal and Meghana are US citizens and have resided
in the US for a long time, it would be in the best interest of the children, to conduct the
proceedings in America. Thus, a summary inquiry would be the most feasible option.
2.4.PARAMOUNT INTEREST CONSIDERED:
Though various international principles and doctrines are given utmost importance, they may be
applied only when it does not affect the welfare of the children involved in the process. Nothing
22
supersedes the welfare of the child which is of paramount importance. The Court has to consider
multifarious options and execute the needful only when it is established that such action will not
affect the welfare of the children. In Surya Vadanan v. State of TN20 the Madras HC held:
The foreign Court may also come to the conclusion that the best interests and
welfare of the children requires that they may remain in the U.K In other
words, there are several options before the foreign Court and we cannot jump
the gun and conclude that the foreign Court will not come to a just and
equitable decision which would be in the best interests and welfare of the two
children
In Ravichandran V. UOI21, the Honble SC held:
The Privy Council in McKee v. McKeeheld that there may be cases in which it
is proper for a Court in one jurisdiction to make an order directing that a child
be returned to a foreign jurisdiction without investigating the merits of the
dispute relating to the care of the child on the ground that such an order is in
the best interest of the childThere is nothing to suggest that the foreign Court
is either incompetent or incapable of taking a reasonable, just and fair decision
in the best interests of the children and entirely for their welfare.
There is nothing on record which emphasizes that the children may undergo any form of
physical or mental trauma if they are reinstated to the US. Considering the fact that the
children lived in the US for most of their life, it would be in their best interests to do so.
2.5.PRIMACYGIVEN TO ORDER NOTWITHSTANDING PARTYS CONSENT:
In circumstances which affect the welfare of children, the Court may, in certain instances, direct
orders which are short of the consent of the parties. In such cases, primacy is given to the interest
21Ravi Chandran v. Union of India (2010) 1 SCC 174.

23
of the children to ensure their mental and psychological health. In Surya Vadanan v State of
TN22, this Honble Court held:
In the event MayuraVadanandoes not comply with the directions given by us,
Surya Vadanan will be entitled to take the children with him to the U.K. for
further proceedings in the High Court of Justice.
In the same case, the esteemed Court also held that the husband had the rights to collect
his childrens passports. Thus in cases where the foreign orders do not violate the
provisions of Section 13 of the CPC, the Domestic Court may order the Petitioner to
present the case in the Foreign Court.
3. S.6(A) OF HMGA IS CONSTITUTIONALLY VALID:
3.1. PRESUMPTION IN FAVOUR OF THE CONSTITUTION:
There is always a presumption in favour of constitutionality of law made by the parliament or a
state legislature. InGovernment of Andhra Pradesh v. P. Laxmi. Devi23, it was observed by
this Honble Court itself that every effort should be made by the courts to uphold the validity of a
statute, as invalidating a statute is a grave step.
The U.S. Supreme Court enunciated the principle that there is a presumption
in favour of the constitutionality of Statute, and the burden is always upon the
person who attacks it to show that there has been a clear transgression of a
constitutional provision.
This view was adopted by the Constitution Bench of this Court inCharanjitLal Chowdhury
v.UOI &ors24.
InM/s. B.R. Enterprises v. State of U.P. and ors,25this Court observed:
23Government of Andhra Pradesh v. P. Laxmi.Devi(2008) 4 SCC 720.
24CharanjitLal Chowdhury v. UOI &OrsAIR 1951 SC 41.
25M/s. B.R. Enterprises v. State of U.P. and others (1999) 9 SCC 700.
24
"Another principle which has to be borne in mind in examining the

constitutionality of a statute is that it must be assumed that the legislature
understands and appreciates the need of the people and the laws it enacts are
directed to problems which are made manifest by experience and that the elected
representatives assembled in a legislature enact laws which they consider to be
reasonable for the purpose for which they are enacted. Presumption is,
therefore, in favour of the constitutionality of an enactment: vide CharanjitLal
Chowdhary v. Union of India 26, State of Bombay v. F.N. Bulsara27, MahantMoti
Das v. S.P. Sahi.28
InState of Bihar and others v. Bihar Distillery Ltd.,29a Constitution Bench of this Court
observed:
"The approach of the Court, while examining the challenge to the
constitutionality of an enactment, is to start with the presumption of
constitutionality. The Court should try to sustain its validity to the extent
possible. It should strike down the enactment only when it is not possible to
sustain it. The Court should not approach the enactment with a view to pick
holes or to search for defects of drafting, much less in exactitude of language
employed. Indeed, any such defects of drafting should be ironed out as part of
the attempt to sustain the validity/constitutionality of the enactment. After all, an
Act made by the Legislature represents the will of the people and that cannot be
lightly interfered with. The unconstitutionality must be plainly and clearly
established before an enactment is declared as void."
More
specifically
so,
in
relation
to
the
impugned
legislation,
in
the
GithaHariharan&Anr. v. Reserve Bank of India &Anr.30, the apex Court ruled,
26CharanjitLal Chowdhury v. UOI AIR 1951 SC 41.

27State of Bombay v. F.N. BulsaraAIR 1951 SC 318.
28MahantMoti Das v. S.P. SahiAIR 1959 SC 942.
29State of Bihar and others v. Bihar Distillery Ltd (1997) 2 SCC 453.
25
case
of
It is to be noted that the validity of a legislation is to be presumed and efforts

should always be there on the part of the law courts in the matter of retention of
the legislation in the statute book rather than scrapping it and it is only in the
event of gross violation of constitutional sanctions that law courts would be
within their jurisdiction to declare the legislative enactment to be an invalid
piece of legislation and not otherwise and it is on this perspective that we may
analyse the expression used in Section 6 in a slightly more greater detail.
Hence, it is evident from the aforementioned cases that a legislative enactment must be
presumed to be constitutionally valid, and will continue to do so, unless it is absolutely proved
otherwise.
3.2.READING DOWN THE LAW :
If a statutory provision is capable of two possible interpretations, so that by one it is rendered
unconstitutional and, by the other it is made constitutional, that Court will prefer the
interpretation which saves and preserves the provision in preference to the one which destroys it.
As the SC held in B.R. Enterprises v. State of U.P.31,
It is also well settled, first attempt should be made by the Courts to uphold the
charged provision and not to invalidate it merely because one of the possible
interpretations leads to such result, howsoever attractive it may be. Thus, when
there are two possible interpretations, one invalidating the law and the other
upholding, the latter should be adopted. For this, the courts have been
endeavoring, sometimes to give restrictive or expansive meaning keeping in view
the nature of legislation, may be beneficial, penal or fiscal etc.
Additionally, in the case ofQuarry Owners Association v. State of Bihar 32, the SC has
observed:
30GithaHariharan&Anr. v. Reserve Bank of India &Anr(1999) 2 SCC 228.

31B.R. Enterprises v. State of U.P.(1999) 9 SCC 700.
32Quarry Owners Association v. State of Bihar(2000) 8 SCC 655.
26
Words are not static but dynamic and courts must adopt that dynamic meaning
which upholds the validity of any provision.
In the present case, the impugned legislation can be interpreted in such light as to save it from
unconstitutionality and ultimately, invalidity. In the previous case of GithaHariharan v.
Reserve Bank of India33, when the presently impugned legislation was questioned on the
grounds of being void due to unconstitutionality, the SC held:
It is well settled that if on one construction a given statute will become
unconstitutional, whereas on another construction which may be open, the
statute remains within the constitutional limits, the court will prefer in
accordance with the constitution and courts generally lean in favour of the
constitutionality of the statutory provisions.
As the SC has observedfor upholding any provision, if it could be saved by reading it
down, it should be done, unless plain words are so clear to be in defiance of the
constitution.34
The language used in Section 6(a) of the HMGA, although on a plain reading presents itself as
being against the spirit of equality can be interpreted in such a manner as to make it
constitutionally valid. In answering the question as to whether the word after in the impugned
legislation is to be interpreted as being after the lifetime, the Supreme Court ruled in
GithaHariharan v. RBI thus:
Is that the correct way of understanding the section and does the word after
in the section mean only after the lifetime? If this question is answered in the
affirmative, the section has to be struck down Did Parliament intend to
transgress the constitutional limits or ignore the fundamental rights guaranteed
by the constitution which essentially prohibits discrimination on the grounds of
sex? In our opinion- No.
33GithaHariharan v. Reserve Bank of India(1999) 2 SCC 228.
34B.R. Enterprises, supra.(1999) 9 SCC 700.
27
When an interpretation of a clause makes it vulnerable to attack under Article 14, it should be
avoided. If there is obvious anomaly in applying the law, the Court could shape the law to
remove the anomaly and give effect to the purpose of the legislature. That could be done, if
necessary, even by modification of the language used.35
The SC has explained the scope of the doctrine of reading down as follows36:
It is thus clear that the doctrine of reading down or of recasting the statutecan
be applied in limited situations. It is essentially used, firstly, for saving a statute
from being struck down on account of its unconstitutionality. It is an extension
of the principle that when two interpretations are possible one rendering it
constitutional and the other making it unconstitutional, the former should be
preferred The second situation which summons its aid is where the provisions
of the statute are vague and ambiguous and it is possible to gather the intentions
of the legislature from the object of the statute, the context in which the
provision occurs and the purpose for which it is made.
In conformity with the doctrine of reading down the law, it can be inferred that the impugned
legislation is to be interpreted in such a manner as to prevent it from becoming unconstitutional.
With respect to the aforementioned principles and the present case at hand, it can be inferred that
there has been no constitutional violation by S.6(a) of HMGA, and its constitutional validity is to
be upheld.
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
35Union of India v. Filip Tiago De Gama (1990) 1 SCC 277.

36Delhi Transport Corporation v. D.T.C. Mazdoor Congress,(1991) Supp 1 SCC 600.
28
Direct the parties to redress the issues in the US Court.

Enforce the US order passed.
To uphold the constitutionality of Section 6 (a) of the HMGA.
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.

29

ANMCC2016 Respondent

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TEAM CODE:

BEFORE THE HONBLE SUPREME COURT OF INDIA

In the matter of:

Raman Sundar & Anr

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

B. LIST OF STATUTES REFERRED

C. LIST OF JOURNALS REFERRED

D. LIST OF WEBSITES REFERRED

E. LIST OF REPORTS REFERRED

LIST OF CASES REFERRED

MEMORIAL ON BEHALF OF THE RESPONDENTS

- ALL INDIA REPORTER

- DIRECTIVE PRINCIPLE OF STATE POLICY

- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

-UNIVERSAL DECLARATION ON HUMAN RIGHTS

- INDIAN PENAL CODE

- SUPREME COURT ALMANAC

- SUPREME COURT CASES

- CODE OF CIVIL PROCEDURE

-HINDU MARRIAGES ACT

-HINDU MINORITY AND GUARDIANSHIP ACT

-GUARDIANSHIP AND WARDS ACT

-AMERICAN CONVENTION ON HUMAN RIGHTS

-PRINCIPLES OF NATURAL JUSTICE

-DECLARATION ON RIGHTS OF CHILD

-INTERNATIONAL CONVENTION ON ECONOMICAL AND SOCIAL

-UNITED NATIONS CONVENTION ON RIGHTS OF CHILD

-UNITED STATES OF AMERICA

MEMORIAL ON BEHALF OF THE RESPONDENTS

D.D.BASU,SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA

NAGPUR, 14TH EDN. (2009).

NAGPUR, EDN (2001).

CO. 12TH EDN(2013).

MAXWELL, 14TH EDN.

PUBLISHERS, 4TH EDN.

PUBLISHERS, 7TH EDN.

B. LIST OF STATUES REFERRED:

3. SUPREME COURT ALMANAC (SCALE)

E. LIST OF REPORTS REFERRED:

Government of Andhra Pradesh v. P. Laxmi. Devi

(2008) 4 SCC 720

FOREIGN CASE LAWS:

1981 (2) FLR 416 (CA)

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

1) WHETHER THE DIVORCE PETITION AND PARTICULARLY THE INTERIM

3) WHETHER S.6(a) OF THE HINDU MINORITY AND GUARDIANSHIP ACT

1.1.MODERN THEORY OF CONFLICT OF LAWS:

8Surindher Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698.

Where it has not been pronounced by a Court of competent jurisdiction

Where it has not been given the merits of the case

Where it appears on the face of the proceedings to be founded on an

Where the proceedings in which the judgment was obtained or opposed to

Where it has been obtained by fraud.

Where it sustains a claim founded on a breach of any law in force in India.

S.14 Presumption as to foreign judgment:

14Shilpa Agarwal v. Aviral Mittal 2010 (3) SCC 169.

18Surya Vadanan v. St of TN (2015) 5 SCC 450.

20Surya Vadanan v. St of TN (2015) 5 SCC 450.

21Ravi Chandran v. Union of India (2010) 1 SCC 174.

"Another principle which has to be borne in mind in examining the

GithaHariharan&Anr. v. Reserve Bank of India &Anr.30, the apex Court ruled,

26CharanjitLal Chowdhury v. UOI AIR 1951 SC 41.