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TEAM CODE- 13

PRESENTED BEFORE THE HONBLE


GAUHATI HIGH COURT

INTRA MOOT COURT


NEF LAW COLLEGE

MR. ANIL (APPELLANT)


VS.
MRS. RASHMI (RESPONDANT)

MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS

SERIAL NUMBER
1.
2.
3.
4.
5.
6.
7.

TOPIC
Index of Authorities
Statement of Jurisdiction
Statement of Facts
Issues Raised
Summary of Arguments
Written Arguments
Prayer

INDEX OF AUTHORITIES
REFERRED BOOKS:
1. Commentary on Hindu Law by R.K. Agarwala.

PAGE NUMBER
3
4
4
5
6-8
9-15
16

2. The Code of Civil Procedure by C.K Takwani.


3. Modern Hindu Law by Paras Diwan.
4. The Constitutional law Of India by J.N. Pandey.
REFFERED CASES:
1) Lekha v. P. Anil Kumar Appeal (civil) 5131 of 2006
2) Ram Prasad v. District judge, Gorakhpur', AIR 1920 All 89
3) Kumar V. Jahangirdar vs. Chethna K. Ramateertha, Special leave petition (civil) 4230
4)
5)
6)
7)
8)
9)

4231 of 2003
Saptmi v. Jagdish, (1970) Cal 272
Sheela vs. Jeevanlal 1988 AP 275
V. Bhagat vs. D Bhagat (1994) 1 FCC 337
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276
'Mt. Mansa Devi v. Makhar', AIR 1936 Pesh 207
'In re Mcgrath (Infants)', (1893) 1 Ch 143

STATEMENT OF JURISDICTION
The respondent humbly submits this memorandum to the Honble High Court under section
19(1) of Family Courts Act, 1984.
STATEMENT OF FACTS
The marriage between the appellant and the respondent was solemnized on 31-01-2004 as per
the Hindu Religious Rites and Customs. A son Rahul was born and is 11 years old now. He is
also academically exceptional. At the time of marriage, the Respondent was a Business Man
in Germany. After marriage, the Appellant and the Respondent lived together for 3 months
and thereafter lived separately and the appellant went back to Germany because of the
misunderstandings between them. Only during business trips to India, he visited his son who
lived with the mother in her flat, which was gifted to her by her parents as Stridhan. With
every visit of the husband, the misunderstandings between the spouses became aggravated
and he started questioning the character and morality of the wife. The wife always tried her
level best to save their marriage. In the recent 10 days trip of Mr. Anil, he stayed with his
wife in her place. During the stay, the harassment and cruelty of the appellant crossed the
extreme extent for which the respondent was compelled to file a petition for divorce on the
ground of cruelty. The husband filed an original petition under the Guardians and Wards
Act,1890 for the custody of 10 years old son and also a petition for Restitution of Conjugal
Rights. The Principal Judge of Udalguri Family Court passed an ex- parte decree of divorce
in favour of the wife and the petition for Restitution of Conjugal Rights filed by the Appellant
was dismissed for default. After considering the oral evidence adduced by the parties and
examining the documentary evidence and also interviewing the child, the Trial Court came to
the conclusion keeping in view that welfare of the child, the custody should be given to the
mother and dismissed the original petition of the father filed under the Guardians and Wards
Act. The husband filed an appeal before the High Court against the order of the Trial Court.

ISSUES RAISED
1. Whether the Appellant Mr. Anil has the 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 right 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 (accusation of unchastity) actually amounted to cruelty
towards his wife?

SUMMARY OF ARGUMENTS
It is Humbly submitted that,
1. Whether the appellant Mr. Anil has the locus standi to file an appeal in the High
Court?
No, the appellant Mr. Anil does not have the locus standi to file an appeal in the High Court.
Section 96 of Civil Procedure Code, 1908 states the 2 conditions required to appeal in the
High Court, of which the appellant does not fulfill the second condition, i.e., the party
appealing must be adversely affected by the decree passed.
In our case, custody of the child was never with the father in the first place hence the decree
passed by the Trial Court of granting custody of the child to the mother has not adversely
affected the appellant.
2. Will remarriage of the respondent amount to termination of guardianship?
Remarriage of the respondent will not amount to termination of guardianship.
Section 13 of the Hindu Minority And Guardianship Act, 1956 provides for- Welfare of
minor to be paramount consideration.Section 17 of Guardians And Wards Act, 1890 states that, Matter to be considered by the
Court in appointing guardian..
The learned judges in previous judicial decision1 held that, the remarriage of the mother
cannot be taken as a ground for not granting the custody of the child to the mother. The
paramount consideration should be given to the welfare of the child.

1 Lekha vs P. Anil Kumar on 21 November Appeal (civil) 5131 of 2006

Hence in the present case, the respondent, Mrs. Rashmis remarriage does not amount to
termination of guardianship.
3. Whether the decision of the subordinate court of dismissing the petition for
restitution of conjugal rights justified?
The decision of the subordinate court of dismissing the petition for restitution of conjugal
rights is very much justified.
Section 9 of Hindu Marriage Act, 1955 provides for Restitution Of Conjugal Rights.
But here, there is no question for decree of restitution of conjugal rights, because a decree of
divorce has already been passed by the Honourable Family Court. A divorce means
permanent termination of marriage and the parties no longer retain the status of husband and
wife, hence the rights and obligations of the spouses are terminated and they become free to
remarry.
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?
(A) The custody of the child to his mother will not be detrimental to his physical and
mental welfare.
Section 17 of Guardians and Wards Act, 1890 provides- Matter to be considered by the
Court in appointing guardian.
Section 13 of Hindu Minority and Guardianship Act, 1956 states Welfare of minor to be
paramount consideration.

In our case, Rahul (minor son), being highly talented and capable enough to make wise
preferences, expressed his willingness to stay with his mother. This has already been proved
by the Trial Court earlier in granting the custody to Mrs. Rashmi (mother).
(B) No, the financial condition of the mother shall not be taken into consideration while
giving away the custody of the child. It has been held by the Allahabad HC 2 that the word
welfare does not only mean material but moral welfare as well and in our case, giving
the custody to the father will deprive the child from his moral welfare as the father being
a businessman and having to go on business trips will not be able to devote quality time
to his son.
5. Whether the act of husband (accused of unchastity) actually amount to cruelty?
Yes, the act of husband (accused of unchastity) actually amounts to cruelty.
In previous judicial decisions3, held that if a spouse is subjected to false accusations of
adultery or false charges of immorality, it would make married life impossible to be endured
and would make a very unhappy and miserable existence. This type of cruelty is worse than
the acts of physical cruelty.
In our case, the appellant raised allegations that my client Mrs. Rashmi is indulged in illegal
intimacy with another man, it made married life impossible to be endured between the
spouses also the harassment and cruelty crossed the extreme extent. Hence the respondent
filed a petition for divorce on the ground of cruelty.

2 Ram Prasad v. District judge, Gorakhpur', AIR 1920 All 89


3 Saptmi v. Jagdish (1970) Cal 272

WRITTEN ARGUMENTS
It is Humbly submitted that,
1. Whether the appellant Mr. Anil has the locus standi to file an appeal in the High
Court?
No, the appellant Mr. Anil does not have the locus standi to file an appeal in the High Court.
Section 96 of Civil Procedure Code, 1908 states the 2 conditions are required to appeal in the
HC, of which the appellant does not fulfill the second condition, i.e., the party appealing must
be adversely affected by the decree passed.
In the instant case, it was not like he was enjoying the custody of the child for all these years.
In fact, he never had the custody of the child in the first place. Till date the child has been
taken care and looked after only by his mother. In the case of Kumar V. Jahangirdar vs.
Chethna K. Ramateertha4, it was held that while awarding custody of child to anyone, the
only touchstone is interest and welfare of the child and nothing else. Convenience and
pleasure of the parents is totally immaterial. Therefore the facts of our case reveal that only
on the account of displeasure and no legal right being violated of the husband, the decision of
the Honorable Family Court of giving the custody of the child to mother and dismissing the
petition of the father did not harm him in any possible way.
2. Will remarriage of the respondent amount to termination of guardianship?
Let us take you back to 2006, in a landmark judgment given by SC in the case of Lekha vs. P.
Anil Kumar5 where it was clearly held that, the remarriage of the mother cannot be taken as a
4 Special leave petition (civil) 4230 4231 of 2003
5 Appeal (civil) 5131 of 2006

10

ground for not granting the custody of the child to the mother. The paramount consideration
should be given to the welfare of the child. The law permits a person to have the custody of
his minor child. The father ought to be the guardian of the person and property of the minor
under ordinary circumstances. The fact that the mother has married again after the divorce of
her first husband is no ground for depriving the mother of her parental right of custody and
also the court forms the impression that the mother is a normal and independent young
woman and shows no indication of imbalance of mind in her, then in the end the custody of
the minor child should not be refused to her or else we would be really assenting to the
proposition that a second marriage involving a mother per se will operate adversely to a claim
of a mother for the custody of her minor child.
Also the learned judges in previous judicial decision of Sheela vs. Jeevanlal6, held that a
mother cannot be deprived of custody, just because she has remarried.
In the instant case, the question raised was on remarriage of the respondent mother. But only
because of the fact that she remarried, will not act as a ground for termination of her
guardianship. As the fact reveals that, after examining the documentary evidence and also
interviewing the child who is preferring to live with his mother, are enough for us to conclude
that proper welfare can only be attained if the boy is allowed to stay in the custody of the
respondent.
3. Whether the decision of the subordinate court of dismissing the petition for
restitution of conjugal rights justified?
The decision of the subordinate court of dismissing the petition for restitution of conjugal
rights is very much justified.
Section 9 of Hindu Marriage Act, 1955 provides for Restitution Of Conjugal Rights.
6 1988 AP 275

11

But here, there is no question for decree of restitution of conjugal rights, because a decree of
divorce has already been passed by the Honourable Family Court. A divorce means
permanent termination of marriage and the parties no longer retain the status of husband and
wife, hence the rights and obligations of the spouses are terminated and they become free to
remarry.
Here in the instant case, the marriage of Mrs. Rashmi (respondent) and Mr. Anil (appellant)
was solemnized on 31st January, 2004 as per the Hindu religious rites and customs. After
marriage, the Appellant and the respondent lived together for 3 months and thereafter lived
separately because of the misunderstanding between them. Therefore, the appellant went back
to Germany to resume his business. Later out of the said wedlock a son, namely Rahul was
born who is 11 years old now with exceptional academic record. Whenever the husband had
business trips to India, which normally were not more than 2-3 days, he always visited his
son who lived with the mother in her flat, which was gifted to her by her parents as Stridhan.
But I am sorry to say, with every visit of the husband, the misunderstandings between the
spouses became aggravated and he started questioning the character and morality of the wife.
In fact, it was my client who was trying her level best to save their marriage and being a
Hindu, she always had regarded marriage to be a sacred institution. But all her efforts went in
vain. In the recent trip of Mr. Anil, which was to last for 10 or more days, he stayed with his
wife in her place. During the stay, the harassment and cruelty of the appellant crossed the
extreme extent the respondent was compelled to file a petition for divorce on the ground of
cruelty.
The fact that cruelty amounts to divorce has been specifically given under Section 13 (1) (ia)
of the Hindu Marriage Act, 1955. It states that-

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(1)

Any

marriage

solemnized,

whether

before

or

after

the

commencement of the Act, may, on a petition presented by either the husband or


the wife, be dissolved by a decree of divorce on the ground that the other party(ia) has, after the solemnization of the marriage, treated the petitioner with
cruelty.
It was observed in V. Bhagat vs. D Bhagat7 that mental cruelty in Section 13 (1) (ia) can be
broadly defined as that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the other. Mental cruelty
must be of such a nature that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It is not necessary to prove that the mental
cruelty is such as to cause injury to the health of the petitioner.
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?
(A) The custody of the child to his mother will not be detrimental to his physical and
mental welfare.
Section 17 of Guardians and Wards Act, provides- Matter to be considered by the Court in
appointing guardian.
In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions
of this section, be guided by what, consistently with the law to which the minor is subject,
appears

in

the

circumstances

to

be

for

the

welfare

of

the

minor.

If the minor is old enough to form an intelligent preference, the Court may consider that

7 (1994) 1 FCC 337

13

preference.
The Court shall not appoint or declare any person to be a guardian against his will.
Section 13 of Hindu Minority and Guardianship Act, states Welfare of minor to be
paramount consideration.
In the instant case, the Trial Court came to the conclusion keeping in view that welfare of the
child, the custody should be given to the mother. The child would not have had such brilliant
academic record and there would have been no willingness on the part of the child to stay in
the custody of the mother, if her custody would have been detrimental to his physical and
mental welfare.
The glimpse of welfare can be taken as the paramount consideration for custody of the child,
can be traced in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka 8, where
the court held that "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."
Therefore, the custody of the child to his mother has proved to be beneficial for the overall
growth and welfare of the child who seems to be happy in his present situation.
(B) If the opposition party so wants to question the financial condition of my client in
taking consideration while giving away the custody of her child, then let us make
them aware that my client lived separately in her own flat just after 3 months of their
marriage, and has been living there since then. She owns land and also has properties
in her name. She was aware that once she leaves the husband legally, she is not
entitled for the maintenance which she was receiving from him, but still she wanted

8 AIR 1982 SC 1276

14

the divorce. This particular act proves that she was financially sound enough to take
care of herself and her son.
The learned judges in previous judicial decisions of Mt. Mansa Devi v. Makhar9, Middleton
J., clarified that the word "welfare" meant both material and spiritual welfare of the minor. In
Ram Prasad v. District judge, Gorakhpur10, the Allahabad High Court held that the word
'welfare' meant not only material but 'moral' welfare as well.
Following the facts of the instant case, the child is academically exceptional and also is very
happy in staying with his mother which was proved during the interview of the child. But
during his early school days it is very normal for a boy of such tender age in not knowing to
decide what is right and what is not and hence without having any malafide intention, was
caught stealing his classmates personal belonging. The respondent was not informed about
her sons mischief until the son was caught again by the school authority. The respondent
being a law abiding citizen and having high moral senses, as every caring mother would,
taught her son the ethical values of life and hence no such act was ever repeated by him.
The English law, no less than Indian law, lays emphasis primarily on the welfare of the child.
In Re Mcgrath (Infants)11, Lindley J., said The dominant matter for the consideration of the
court is the welfare of the child. But the welfare of the child is not to be measured by money
only, or by physical comfort only. The word "welfare" must be taken in its widest sense.
Bearing these principles in mind, we can say the welfare of the minor can only be attained if
he remains in the custody of the mother.
5. Whether the act of husband (accused of unchastity) actually amount to cruelty?
9 AIR 1936 Pesh 207
10 AIR 1920 All 89
11 (1893) 1 Ch 143

15

Yes, the act of husband (accused of unchastity) actually amounts to cruelty.


In Saptami vs. Jagdish12, the husband constantly called the wife a prostitute, a woman of the
street. It was held in this case, that if a spouse is subjected to false accusations of adultery,
insults, humiliations, abuses, false charges of immorality, it would make married life
impossible to be endured and would make a very unhappy and miserable existence. This type
of cruelty is worse than the acts of physical cruelty.
In the instant case, whenever Mr. Anil had business trips to india, he would visit his son who
lived with his mother but I am sorry to say, with every visit of the husband, the
misunderstandings between the spouses became aggravated and the he started questioning the
character, morality and also alleged the respondent of having illegal intimacy with another
man.
In the recent trip of Mr. Anil, which was to last for 10 or more days, he resided at his wifes
place. During the stay, the harassment and cruelty of the appellant crossed the extreme extent
and the respondent was compelled to approach the court of law to seek justice from such kind
of cruelty and hence she filed a divorce petition on the ground of cruelty.
Section 13 (1) (ia) of the Hindu Marriage Act, 1955 specifically states that(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on
a petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.
Eventually the Honourable Family Court passed an ex- parte decree of divorce in favour of
the respondent.

12 (1970) Cal 272

16

17

PRAYER
In light of the questions presented, and arguments advanced, the agent for the
Respondent most humbly and respectfully prays before this Honourable Court, that it may
be pleased to adjudge and declare that the custody of the minor child should remain in hands
of the respondent (mother) so that the childs welfare is continued to be taken in the widest
sense including physical, mental, ethical and spiritual level.