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2 ND^ SURANA & SURANA AND ARMY INSTITUTE OF LAW
NATIONAL FAMILY LAW MOOT COURT COMPETITION, 2020- 21
IN THE HON’BLE FAMILY COURT OF NEW DELHI, INDIA
ORIGINAL JURISDICTION
UNDER SECTION 7 OF THE FAMILY COURTS ACT, 1984
Mr. SANDEEP …Petitioner
V.
Mrs. ANJALI …Respondent
UPON SUBMISSION TO THE HON’BLE FAMILY COURT OF NEW
DELHI, INDIA
MEMORANDUM ON BEHALF OF THE PETITIONER
FL - 15
TABLE OF CONTENTS
- COURT COMPETITION, 2020 -
- TABLE OF ABBREVIATIONS……………………………………………………………………..
- INDEX OF AUTHORITIES…………………………………………………………………….......
- STATEMENT OF JURISDICTION…………………………………………………………….……
- STATEMENT OF FACTS………………………………………………………………………….
- STATEMENT OF ISSUES……………………………………………………………………........
- SUMMARY OF ARGUMENTS…………………………………………………………………... - I.WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?............................................ ARGUMENTS ADVANCED
- II.WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI...............................
- PRAYER……………………………………………………………………………….…........
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INDEX OF AUTHORITIES
TABLE OF CASES
S.NO. CASES CITATION
- A. Jayachandra v. Aneel Kaur 2005 (1) CTC 215 (SC) : 2005 (2) SCC 22
- Anuj Chaturvedi v. Jyothi Special Leave to Appeal (C) Nos. 6303 of 2017. D/d. 4.10.
- Carla Gannon v. Shabaz Farukh Allarakhia Criminal W P No. 509 of 2009 (BOM HC)
- Dilip Goswami v. State of Tripura W.P. (HC) No. 05 of 2013
- K.G. v. State of Delhi W.P. (Crl.) No.374/
- Kamla Devi v. Himachal Pradesh AIR 1987 HP 34
- Kanika Goel v. State of Delhi Miscellaneous Application No. 2487-2492 Of 2018 In Criminal Appeal No. 635- 640 Of 2018
- MausamiMoitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634)
- Meera Agarwalla Bansal And Anr. v. Shyam SundarAgarwalla I (2002) DMC 593
- Naveen Kohli v. Neelu Kohli AIR (2006) SC 1675
- Nil Ratan Kundu v. Abhijit Kundu ((2008) 9 SCC 413: AIR 2009 SC (Supp) 732)
- R. V. Srinath Prasad v. Nandamuri Jayakrishna (2001) 4 SCC 71
- Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263
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- Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840
- Salome v.Dr.PrinceD.Immanuel Madras HC (C.M.A.(MD) Nos.238 of 2012 and 239 of
- Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
- Sandhya Rani v. Kalyanram Narayanan^ (1994) Supp. 2 S.C.C. 588
- Sarah Vijayalakshmi and two others v. Dr.J.D.Devadatta
2011 (2) CTC 372
- Sheila B. Das v. P.R. Sugasree (2003) 3 SCC 62
- Smriti Madan Kansagra v. Perry Kansagra Matrimonial Appeal (F C)No.30 of 2018; Civil Miscellaneous Application No.49507 of 2018
- Smt. Sadhna Agarwal v. State of Chhattisgarh^ 2017 SCC OnLineChh 19, 03- 01 - 2017
- Tatineni Mayuri v. EdaraBaldev Civil Appeal Nos. 2471- 2473 Of 2016
- Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675
- Warr v. Warr [1975] I All ER 85)
- Yashita Sahu v. State of Rajastan (2020) 3 SCC 67: (2020) 2 SCC (Civ) 39, 20- 01 - 2020 LIST OF LEXICONS
- WHARTON’S CONCISE LAW DICTIONARY, LEXIS NEXIS.
- BLACK’S LAW DICTIONARY, (10TH^ ED.)
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STATEMENT OF JURISDICTION
The Petitioner herein has approached the Hon’ble family court of Delhi by invoking section 71 of the Family Courts Act,1984 which states that a family court has and can exercise all the jurisdictions exercised by the district court of subordinate civil court, corresponding to any law for the time being in force provided that the disputes are of the nature specified in the explanation. With effect to the very case the first explanation to this section states that the family court can handle cases relating to proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage, thus making clear that the present court has jurisdiction. (^1) Section 7 in The Family Courts Act, 1984
- Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall- - (1) Subject to the other provisions of this Act, a Family Court shall-" (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment.
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STATEMENT OF FACTS
- Sandeep and Anjali got married in New Delhi as per the Hindu Marriage Act, 1955. After marriage, Sandeep was soon promoted and got a job offer from the Silicon Valley in USA and Anjali by that time had just landed a resident position at a local hospital. But Anjali was forced to move to USA with Sandeep. In order to practise medicine in the states she had to clear the medical board which she eventually did. Soon after, she realizes that it is the appropriate time for her to have a child but Sandeep opposes given their financial instability.
- Later in 2010, after many failed attempts the couple decided to get their child born through surrogacy in India and eventually bring him/her with them to USA.
- After many unsuccessful attempts at finding a surrogate they had finally found Priya who was willing to act as a surrogate to their baby and it was decided verbally between Sandeep, Anjali and Priya, that Priya would have no right and access to the child any time in the future. Sandeep and Anjali then returned to USA.
- In 2014, a baby girl was born and the couple returned to India. The baby, being a pre- mature one was advised not to travel for the first few months. Anjali leaves to USA for work whereas Sandeep stayed back taking care of the baby, and owing to the time he spent with Priya and the baby he started developing romantic feelings towards Priya and started ignoring Anjali and his emotional dependence on her also started to fall drastically.
- Anjali then tries to clarify things with Sandeep, but it led to heated arguments and fights between them. Sandeep files for divorce, believing that the relationship he had with Anjali was now over. In the meantime,Priya claimed that she did not want to give up the custody of the child as she had become emotionally attached to the child. Anjali files for ROCR and custody of the child.
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SUMMARY OF ARGUMENTS
I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?
The counsel for the Petitioner most reverently submits before this court that Mr. Sandeep is entitled to file for divorce as the matrimonial bond is irretrievably broken down, not being alive anymore and also because, there is no cohabitation for almost 6 years now. In order to protect the sanctity of marriage, to reduce the number of unhappy marriages and to let the couple live peacefully for the rest of their lives without any further mental agony, it is necessary to dissolve such a marriage and thus, the case at hand as well.
II. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS.ANJALI?
The counsel for the Petitioner most humbly submits before this court that if sole custody is granted to Mrs. Anjali, the best interest of the child will be not be adequately served. Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor is the father and after him, the mother provided the minor has not completed the age of five years of age. Rule 2(c) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, defines that “best interest of the child” is a decision taken to ensure the physical, emotional, intellectual, social and moral development of juvenile or child.” When the child has developed a certain level of mental, physical and emotional attachment with the father, it would be traumatizing for the child if she is removed from the father's custody.
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ARGUMENTS ADVANCED
I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?
¶1. The Petitioner most reverently submits before the Hon'ble Family court of Delhi that Sandeep is entitled to file for divorce. According to Section 13 of the Hindu Marriage Act, 1955, there are certain set grounds under which a person can claim for divorce. But with the changes in the social mores does it seem fair to grant divorce only on the grounds laid down under the said section? I.1. Whether it is fair and just to grant divorce only on the basis of the grounds mentioned in section 13 of the Hindu Marriage Act, 1955? ¶2. On a general note, it cannot be possible to include all possible scenarios when it comes to a rigidly framed provision. Especially when it comes to divorce, owing to the changes in the social mores, having set grounds, only under which divorce can be granted wouldn't serve the purpose of the law. Thus section 13 must be given a wider scope to provide justice. The Law Commission in its 71st report, submitted in 1978 , dealt with the concept of irretrievable breakdown of marriage. It held that Restricting the ground of divorce to a particular offence or matrimonial disability causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not wish to divulge it, yet there has arisen a situation in which the marriage cannot be worked; that is, where the marriage has all external appearances of marriage but none of the reality. In such circumstances, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bonds which are the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in
COURT COMPETITION, 2020 - 21 ¶5. The Supreme Court has with a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Infact, these were exceptional measures taking up by the SC as divorce can be granted only on the grounds laid down under section 13. But it did so as it realised the importance of mental agony and pressure that the parties have to undergo for the rest of their lives if not for this order of divorce. ¶6. In A. Jayachandra v. Aneel Kaur^2 , the Supreme Court examined such cases. And after discussing the facts concluded that When the respondent gives priority to her profession over her husband's freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce irretrievable breaking of marriage.The Court found the marriage irretrievably broken down and granted divorce to the husband. This is however very surprising, as many a times in similar circumstances the court, rather than granting a decree for divorce, would grant them an order pertaining to restitution of conjugal rights holding the notion of a Hindu marriage being sacramental as the very foundation for the said decree. ¶7. In Sandhya Rani v. Kalyanram Narayanan^3 , the Court reiterated and took the view that since the parties are living separately for the more than three years, and have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court in such case, granted the decree of divorce. (^2) 2005 (1) CTC 215 (SC) : 2005 (2) SCC 22 (^3) (1994) Supp. 2 S.C.C. 588
COURT COMPETITION, 2020 - 21 ¶8. According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid ground for divorce but the court in the case of Salome v.Dr.PrinceD.Immanuel^4 , following the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To prevent the appellant from more cruelty, the appeal of divorce has been allowed. Furthermore, this Court has also dismissed the claim filed by the respondent for the restitution of conjugal rights ¶9. In Samar Ghosh v. Jaya Ghosh^5 , the court held that there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. ¶10. In the case of Rishikesh Sharma v. Saroj Sharma^6 , this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore, the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine. (^4) Madras HC (C.M.A.(MD)Nos.238 of 2012 and 239 of 2012) (^5) (2007) 4 SCC 511 (^6) (2007) 2 SCC 263
COURT COMPETITION, 2020 - 21 marriage is already dead and reiterates the concept of irretrievable breakdown of marriage, which can again be taken into consideration before granting them divorce.
II. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO MRS. ANJALI?
The counsel for the petitioner most humbly submits that if sole custody is granted to Mrs. Anjali, the best interest of the child will be not be adequately served. Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor is the father and after him, the mother provided the minor has not completed the age of five years of age. Rule 2(c) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, defines that “best interest of the child” is a decision taken to ensure the physical, emotional, intellectual, social and moral development of juvenile or child.” When the child has developed a certain level of mental, physical and emotional attachment with the father, it would be traumatizing for the child if she is removed from the father's custody. II.1. Whether disturbing the present custody set-up will benefit the child’s well-being? ¶14. The Petitioner most humbly submits before this hon’ble court that in matrimonial disputes there are several misconceptions on the issue of custody, visitation rights and guardianship. Custody implies the living of the child with one parent. Guardianship implies the proprietorial rights over the child’s person and property. In a traditional family it is the father who is favoured to be responsible with regard to the issues of proprietorial rights of the minor whereas the mother is favoured with the issue of being a caretaker of the minor. But when there is a custody battle neither the father nor the mother are automatically given the custody.
COURT COMPETITION, 2020 - 21 A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.^9 ¶15. Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor is the father and after him, the mother provided the minor has not completed the age of five years then the custody would be with the mother. Under Section 6 (b) in case of an illegitimate minor child it is the mother and after her, the father. ¶16. Section 17 of the Guardians and Wards Act, 1890 describes about the guidelines to be considered consistently with law to which the minor is subject in appointing of the guardian, for welfare of the minor.Receiving love and affection from both the parents is a part of human rights that is vested upon the child even though the parents are estranged and locked in a matrimonial dispute.^10 A newly born child cannot be left at the, mercy of others. A newly born child requires rearing and that is the most crucial time when the child requires constant care and affection."^11 ¶17. In the present case at hand, the child born to Mr. Sandeep and Mrs. Anjali via the surrogate mother Ms. Priya has been under the care and observation of the father since day 1. Over the years, the child would have naturally developed a strong bond of emotional attachment with the father and transferring or removing a child of tender age from the father's custody in a hasty manner will have some adverse effects on the mental and the emotional well-being of the child. (^9) Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675 (^10) Yashita Sahu v. State of Rajastan, (2020) 3 SCC 67: (2020) 2 SCC (Civ) 39, 20 - 01 - 2020 (^11) Smt. Sadhna Agarwal v. State of Chhattisgarh, 2017 SCC OnLineChh 19, 03- 01 - 2017
COURT COMPETITION, 2020 - 21 and sentiments of the parties towards the minor children and the primary aspect of the welfare of the minors, which is of paramount importance.^15 Even Orders pertaining to custody of children passed by consent can be varied by the court, if the welfare of the child demands deviation from the original order.^16 ¶21. The Bombay High Court in Carla Gannon v. Shabaz Farukh Allarakhia,^17 held that for determining the final decree, the child’s welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend. Apex Court also held in the case of Nil Ratan Kundu v. Abhijit Kundu^18 that the welfare of a child is not to be measured merely in terms of money or physical comfort, but the word “welfare” must be taken in its widest possible sense so that the tie of affection cannot be disregarded. The court observes parens patriae jurisdiction in child custody matters i.e., the problem has to be solved with a human touch where the paramount consideration is the welfare of the minor child.^19 The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter¬-allegations made against each other with respect to their matrimonial life.^20 ¶22. In K.G. v. State of Delhi , Court has held that the expression "best interest of child" used by the Supreme Court in its decisions is wide in its connotation. It cannot be read as being only the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child (^15) R. V. Srinath Prasad v. Nandamuri Jayakrishna, (2001) 4 SCC 71 (^16) Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840. (^17) Criminal W P No. 509 of 2009 (BOM HC) (^18) ((2008) 9 SCC 413: AIR 2009 SC (Supp) 732) (^19) Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62 (^20) Smriti Madan Kansagra v. Perry Kansagra, Matrimonial Appeal (F C)No.30 of 2018; Civil Miscellaneous Application No.49507 of 2018
COURT COMPETITION, 2020 - 21 who is only a few years old.^21 As far as child custody is concerned, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is served.^22 ¶23. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.^23 While determining the best interests of the child, “child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favorable surroundings” should be taken into consideration.^24 ¶24. In the case of Dilip Goswami v. State of Tripura ,^25 the court made some strong statements that a child is a tender human being. He/she is not an inanimate object. A child is not a pen which can be taken out from one pocket and put in another pocket. A child may be as young as two years old but has emotions and feelings. The court, cannot in writ jurisdiction direct that the child be taken from the custody of the grandmother and the maternal uncle with whom the child has been residing for two years and suddenly be handed over to the father. This process may have to be done over period of time. It is not in the interest of the child to virtually take him out of the environment in which he is growing up and place him in a totally new environment to which he is not used to. It is the child's future which is of paramount importance and rival claims of the parties will have to give way to the interest of the child. (^21) W.P. (Crl.) No.374/ (^22) Kanika Goel v. State of Delhi Miscellaneous Application No. 2487-2492 Of 2018 In Criminal Appeal No. 635 - 640 Of 2018 (^23) Sarah Vijayalakshmi and two others v. Dr.J.D.Devadatta 2011 (2) CTC 372 (^24) Kamla Devi v. Himachal Pradesh, AIR 1987 HP 34 (^25) W.P. (HC) No. 05 of 2013
