Team 1 Appellant

Team Code: 01
Intra College Moot Court Competition at NEF Law College, 2016

1st April 2nd April 2016
BEFORE THE HONBLE HIGH COURT OF GAUHATI
ANIL (APPELLANT)
V.
RASHMI (RESPONDENT)
ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HONBLE HIGH

COURT OF GAUHATI
MEMORIAL ON BEHALF OF THE APPELLANT ANIL
Page | 1
INDEX
ABBREVIATIONS..........................................................................................................................2
INDEX OF AUTHORITIES............................................................................................................3
Case Laws Referred...................................................................................................... 3
Legislations Referred..................................................................................................... 3
Books Referred............................................................................................................ 3
Websites used.............................................................................................................. 4
STATEMENT OF JURISDICTION................................................................................................5
STATEMENT OF FACTS...............................................................................................................6
ISSUES RAISED.............................................................................................................................7
SUMMARY OF ARGUMENTS.....................................................................................................8
ARGUMENTS ADVANCED..........................................................................................................9
PRAYER........................................................................................................................................17
Memorial on behalf of the Appellant
Page | 2
ABBREVIATIONS
AIR = All India Reporter

SCC = Supreme Court Case
SCR = Supreme Court Reporter
i.e. = That is
Honble = Honourable
HC = High Court
SC = Supreme Court
Sec = Section
U/S = Under Section
Del = Delhi
Ker = Kerala
Mad = Madras
Ors. = Others
V. = Versus
RLR = Rajasthan Law Reporter
Page | 3
Page | 4
INDEX OF AUTHORITIES
Case Laws Referred

Tara Chand Mavar v. Smt. Basanti Devi, 1988 RLR (2) 318
Hirachand Srinavas Manaogaonkar v. Sunanda, AIR 2001, SC 1285
Raj Rani Jain etc. v. Harish Chand Singia and Ors. 1994 III AD Del 6
Munnodiyil Peravakutty v. Kuniyedath halil Velayudhan, AIR1992 Ker 289
Sharli Sunitha v. D. Balson, 2010 (86) AIC 735
N.G. Dastane v. S.Dastane, AIR 1975 SC 1534
Legislations Referred
The Hindu Marriage Act, 1955
The Guardians and Ward Act, 1890
The Indian Contract Act, 1872
The Hindu Minority and Guardianship Act, 1956
The Contempt of Courts Act, 1971
The Code of Civil Procedures, 1908
Page | 5
Books Referred
Dr. Paras Diwan, Modern Hindu Law, 22nd Edition, 2013.
Dr. R. K. Bangia, Contract I, 6th Edition, Reprint 2014
Dr. S. R. Myneni, Hindu Law (Family Law I), 2nd Edition, 2010
Universal Hindu Law Bare Act, 2009
C. K. Takwani, Civil Procedures with Limitation Act, 1963, 7th Edition
Websites used
www.manupatrafast.com
www.scconline.com
www.indiankanoon.com
www.legallyindia.com
www.legal-dictionary.thefreedictionary.com
www.legalserviceindia.com
www.lawmirror.com
Page | 6
STATEMENT OF JURISDICTION
The Appellant humbly submits this memorandum for the appeal filed before this Honable Court.
The petition invokes its writ jurisdiction under section 47 of the Guardians and Ward Act, 1890.
It sets forth the facts and the laws on which the claims are based.
Page | 7
STATEMENT OF FACTS
1. Marriage between Appellant and Respondent was solemnized on 31-01-2004, i.e. 12

years ago as per the Hindu Religious Rites & Customs out of which, a son named
Rahul was born.
2. Although the child was academically exceptional, but he was twice caught stealing
classmates personal belongings.
3. Couple started living separately after 3 months of marriage because of
misunderstanding. But the Appellant kept on visiting his child as well as provided
maintenance for both the minor child and the Respondent.
4. Respondent filed a petition for divorce against the Appellant and the Appellant filed
original petition under Guardianship & Wards Act for the custody of the minor and a
petition under section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights.
5. The main allegation of the Appellant was that, the Respondent was having illegal
intimacy with another person. Secondly, the custody of the child with Respondent
would affect the education of the child. Thirdly, he claims to be in financially better
position than Respondent and hence custody of child be handed over to him.
6. Respondent filed written statement against the petition filed by Appellant.
7. The Udalguri Family Court passed an Ex Parte Decree of divorce against the Appellant
and dismissed the petition for Restitution of Conjugal Rights and gave the custody of
the child to the mother.
8. Aggrieved by the order of the trial court, the Appellant filed an appeal before the High
Court of Gauhati.
Page | 8
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 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 conditions 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) amounted to cruelty towards his
wife?
Page | 9
SUMMARY OF ARGUMENTS
I.
The Appellant Mr. Anil has the locus standi to file an appeal in the High Court.
The provision of section 47 of the Guardians and Ward Act, 1890, provides that the Appellant has
the locus standi to approach the High Court.
II.
The remarriage of the respondent amounts to termination of guardianship.
The remarriage of the respondent amounts to termination of guardianship. Firstly, the respondent
violated the deposition made before the trial court that she would not remarry immediately after
the judgment of the petition filed under the Guardian and Wards Act, 1890. Secondly, under
Section 4(c) of the Hindu Minority and Guardianship Act, 1956 the father is the natural
guardian in case of a boy or an unmarried girl, after him the mother.
III.
The decision of the subordinate court of dismissing the petition for restitution of
conjugal rights was not justified.
The decision of the subordinate court of dismissing the petition for restitution of conjugal right
was not justified. As the order by the subordinate court was an ex parte decree of divorce which
was in the favor of the respondent. The subordinate court without paying any regard to the
grievances of the Appellant granted the decree to permanently dissolve the marriage between the
parties without putting an attempt to save the marriage by dismissing the petition and leaving the
Appellant unheard.
P a g e | 10
IV.
The custody of the child to his mother will be detrimental to his physical and
mental welfare and the financial condition of the mother shall be taken into
consideration while giving away the custody of the child.
The custody of the child to his mother will be detrimental to his physical and mental welfare and
the financial condition of the mother shall be taken into consideration while giving away the
custody of the child. There is no disability incurred by the mother to have custody of the child.
Though the father may be better equipped so far as his financial status is concerned; it is not
sufficient to deprived the child of his mother, as a matter of fact it is not oblivious that the child
may feel emotional set back temporarily when shifted from custody. After the remarriage of the
Respondent it is possible that the child would be neglected, as because she has to devote her time
in building relation with her new husband and his family. Secondly, the appellant has been
providing maintenance for the minor son as well the respondent for the last 11 years. So, it is
well understood that she is unable to cope up with the expense of her minor son all alone.
V.
The act of the husband (accusations of unchastity) does not amount to cruelty
towards his wife.
The act of the husband does not amount to cruelty towards his wife. In fact it was the
Respondent who was having an illegal and illicit relationship with another person and the sudden
marriage of the respondent clearly indicates that the accusations made by the appellant were
veracious. In an attempt to mislead the accusation of infidelity the respondent charged the
husband with the accusation of cruelty to besmirch the good name of the appellant.
P a g e | 11
ARGUMENTS ADVANCED
I.
The Appellant Mr. Anil has the locus standi to file an appeal in the High Court
1. The Appellant has right to appeal because the decision by the trial court was ex parte
decree which was solely biased in favour of the Respondent.
2. The term appeal as has been laid down in the code of civil procedure, may be defined as
the judicial examination of the decision by the higher court of the decision of the
inferior court.
It is a complaint made to higher court that the decree passed by the lower court is wrong,
it is a remedy provided by law for getting the decree of lower court set aside.
Since the Appellant was aggrieved by the ex parte decree, so he had the locus standi to
file an appeal.
3. The right of appeal is a creature of statute and unless it is granted clearly and expressly it
cannot be claimed by a person.
Order 47 of the Guardianship and Wards Act, 1890 reads
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, or under Section 9 subsection (3) returning an application, or under section 25, making or refusing to make an order for
the return of a ward to the custody of his guardian, or under section 26, refusing leave for the
removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with
respect thereto, or under Section 28 or section 29, refusing permission to a guardian to do an act
referred to in the section, or under section 32, defining, restricting or extending the powers of a
P a g e | 12
guardian, or under section 39, removing a guardian, or under section 43, regulating the conduct
or proceedings of a guardian or settling a matter in difference between joint guardians or
enforcing the order, or under section 44 or section 45, imposing a penalty.
So the Appellant has the locus standi to approach the High Court and file an appeal.
II.
Remarriage of the Respondent will amounts to termination of guardianship
The remarriage of the Respondent will amount to termination of guardianship.

1. Under Section 4(c) of the Hindu Minority and Guardianship Act, 1956, natural guardian
means any of the guardians mentioned in section 6. Section 6 of the Act states that the
natural guardian of the Hindu minor, in respect of the minors person as well as minors
property are
a) In case of a boy or an unmarried girl the father, after him the mother.
Provided that the custody of minor who has not completed the age of five years
shall ordinarily be with the mother;
In this case the Appellant should be the natural guardian and the custody of the
child should be with the Appellant in the first place, according to the rule of law.
2. The minor child was living with the Respondent since his birth and it should not be taken
into consideration for the guardianship of the minor child to the Respondent, as well as
the emotional content should not overlap the welfare of the child, where the welfare of
the child should be the paramount consideration of the child. In the case Tara Chand
Mavar v. Smt. Basanti Devi1, the High Court of Rajasthan held that no sentimental
consideration should come in the way of deciding the custody of the child where the sole
and only consideration is welfare of the minor child.
1 1988 RLR (2) 318
P a g e | 13
3. Contrary to the deposition made by Respondent before the trial court that she would not
remarry immediately after the judgment of the petition filed under the Guardian and
Wards Act, 1890, but she remarried. It clearly indicates that the remarriage of the
Respondent was in violation of deposition.
As the definition of deposition suggests that, Deposition is a statement made by a party
under oath and reduced to writing for subsequent use in court proceedings 2. Deposition
per se is affirmation by taking swear.
So violation or non compliance in any manner of such oath taken before the court also
amounts to contempt of the court.
4. From contention 3 and 4, it is clear that the Respondent is a fickle minded lady, so it
would be detrimental to give away the custody of the child to the Respondent, as the
Respondent cannot keep her words as well as Respondent does not abide by the rules of
law.
III.
The decision of the subordinate court dismissing the petition for restitution of
conjugal right was not justified.
The decision of the subordinate court dismissing the petition for restitution of conjugal right was
not justified.
1. Marriage according to Hindu law is a holy sacrament, where the spouses live together till
their death and do not separate from each other. The Hindu principal that prevailed states
that Let mutual fidelity continue until death. The maxim Conjunctic Martitet Peminae
est de nature means that to keep husband and wife together is the law of nature and the
maxim Virete unor consentur in lege una pensona means that husband and wife are
considered one in law.
2 Free Legal Dictionary, <http://legal-dictionaries.thefreedictionary.com/deposition>
P a g e | 14
Keeping in view the above mentioned maxims, the court should have given another
chance to the Appellant to be heard before the court as he had left no stone unturned to
save the marriage.
2. Under Section 9 of the Hindu Marriage Act, 1955, the judicial remedies have been
provided in the form of restitution of conjugal rights to the parties to an unhappy
marriage. It is provided that When either the husband or wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court for
restitution of conjugal right and the court, on being satisfied on the truth of the statements
made in such petition and that there is no legal ground why the application should not be
granted, may decree the restitution of conjugal rights accordingly.
In the instant case, it is apparent from the fact that Mr. Anil wanted to save the marriage,
as he kept on visiting his child as well as provided maintenance for the child as well as
the Respondent. So the decision of the court to dismiss the petition was not justified as it
is one of the fundamental purposes of the marriage that the spouse must live together.
And the provision of restitution of conjugal rights is a hope of bringing nearer both the
spouses, and to avoid conflicts. It was the last resort to establish the amicable relationship
between them.
In Hirachand Srinavas Manaogaonkar v. Sunanda3, the Supreme Court held that to maintain
marital relationship, not to encourage the breakup of such relationship.
Every attempt should be made to maintain the sanctity of the marriage which is of
importance not only for the individuals but to their children as well as the society.
3 AIR 2001, SC 1285

P a g e | 15
IV.
The custody of the child to his mother would be detrimental to his physical and
mental welfare and the financial condition of the mother shall be taken into
consideration while giving away the custody of the child.
Yes, the custody of the child to his mother will be detrimental to his physical and mental welfare
and the financial condition of the mother shall be taken into consideration while giving the
custody of child.
1. Firstly, Rahul the boy who is 12 years old will find it difficult to adjust with his step
father, as Rashmi has remarried.
Anil who has chosen not to remarry being the natural guardian of Rahul was in better
condition to take care of the child.
2. Further it is submitted that the Respondent in her deposition before the trial court had
sworn that she would not remarry, contrary to the statement she remarried immediately
after the judgment of the petition. Therefore, the Respondent would not be in a
position to take care full care of the minor child as she has to devote her time to her
new husband and his family. So it might happen that the child would remain neglected.
3. Thirdly, the Appellant has been providing maintenance for the minor son as well the
Respondent for the last 11 years. So, it is well understood that she is unable to cope up
with the expense of her minor son all alone. The Appellant, who is a business man in
Germany, is well affluent and a notable personality, who will be able to provide the
daily necessities such as food, clothing and shelter as well as the education of the child.
In the case Munnodiyil Peravakutty v. Kuniyedath halil Velayudhan 4 the High Court of
Kerala held that, the paramount of the welfare of the child is axiomatic. It is the most
dominant
consideration
in
the
consciousness
of
the
court.
4 AIR1992 Ker 289
P a g e | 16
Capacity of the custodian to supply the daily necessities such as food, clothing and
shelter is the primary consideration along with education of the child. The custodian
must possess the capacity to create surroundings in which the child will be in touch
with education. In the case of a custodian who is himself educated and given to reading
and writing it is easier for the child to keep itself abreast of letters. If the custodian is
not educated, he cannot create the requisite background in the home. Thirdly awareness
of the need to keep good health and the capacity to provide the means of keeping good
health is another important factor. Fourthly a knowledgeable parent would greatly
contribute to the child's welfare by taking steps like emphasising healthy eating habits,
providing for vaccination, other measures of health-care, timely treatment and the
company of books. Less educated or ignorant parents may not be able to create these
conditions. Fifthly, the economic capacity to educate in a good school, with private
coaching, where necessary, meeting expenses of transport, children's excursions and so
on is no less an important factor.
4. From the facts of the it is quite evident that the upbringing of the child under the
custody of the Respondent was not proper as twice there has been instances of Rahul
being caught stealing classmates personal belongings which further points out that
Appellant was not able to meet all the needs and desires of Rahul as she was
financially
not
very
strong.
And keeping in consideration that the Appellant has better financial condition the
custody of the minor child should be given to the Appellant.
P a g e | 17
In the case, Sharli Sunitha v. D. Balson5 the High Court of Madras held than Custody of a
child should be decided upon consideration as to which of the two rival claimants is more
affluent and both factors, economic condition of claimants as well as concern shown by them
for the welfare of the child should be taken into account
V.
The act of the husband of accusation of unchastity did not amount to cruelty against
his wife.
No, the act of the husband of accusation of unchastity did not amount to cruelty against
his wife.
1. Those accusations were mere statement of facts. It was an attempt to seek attention of the
court that since the Respondent was engaged in having illegal intimacy with another
person and she had left the child neglected which is quite evident from the fact that the
child though being academically exceptional was twice caught stealing his classmates
belongings.
2. The Honble Supreme Court of India in the case of N.G. Dastane v. S.Dastane 6 has held
that What is cruelty in one case may not amount to cruelty in another case. It is a matter
to be determined in each case having regard to the facts and circumstances of that case. If
it is a case of accusations and allegations, regard must also be had to the context in which
they were made.
So the allegations of the husband should be ascertained in the light of the circumstances
of the case, which would prove that those accusations did not amount to cruelty.
5 2010 (86) AIC 735

6 AIR 1975 SC 1534
P a g e | 18
3. Moreover those allegations were not bogus and baseless as the Respondent would not
remarried with that urgency and ease just after the grant of the divorce petition without
paying any regard to the sentiments, interest and welfare of the child as it may be
possible that the child might be subjected to step fatherly treatment by her new husband.
4. Furthermore, to take such a huge step of getting remarried just after ending the previous
marriage, pre-supposes the existence of a deep relationship with another person. This fact
testifies that the Respondent was in relation with another man even before she got
divorced, and those accusations were not baseless.
P a g e | 19
PRAYER
In light of the issues raised, arguments advanced and authorities cited, the counsel for
the Respondent humbly prays that the Honble Court be pleased to adjudge, hold and declare:
1. That, the appeal petition filed by the Appellant is maintainable in the court of law.
2. That, the remarriage of the Respondent will affect the upbringing of the child
3. That, the custody of the child should be awarded to the Appellant.
And pass any order that this Honble court may deem fit in the interest of equity, justice and
good conscience.
And for this act of kindness, the counsel for the Appellant shall duty bound forever pray.
Sd/(Counsel for Appellant)

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Team Code: 01

Intra College Moot Court Competition at NEF Law College, 2016

BEFORE THE HONBLE HIGH COURT OF GAUHATI

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HONBLE HIGH

MEMORIAL ON BEHALF OF THE APPELLANT ANIL

Memorial on behalf of the Appellant

AIR = All India Reporter

Memorial on behalf of the Appellant

Case Laws Referred

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

1. Marriage between Appellant and Respondent was solemnized on 31-01-2004, i.e. 12

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

The remarriage of the respondent amounts to termination of guardianship.

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

Remarriage of the Respondent will amounts to termination of guardianship

The remarriage of the Respondent will amount to termination of guardianship.

3 AIR 2001, SC 1285

4 AIR1992 Ker 289

Memorial on behalf of the Appellant

Memorial on behalf of the Appellant

5 2010 (86) AIC 735

Memorial on behalf of the Appellant

Sd/(Counsel for Appellant)

Memorial on behalf of the Appellant

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