IN THE SUPREME COURT OF INDIA

IN THE MATTER OF

KIRTI PRASAD

(APPELLANT)

V.

RAHUL PRASAD

(RESPONDENT)

ON SUBMISSION TO THE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE APPELLANT

Submitted by:

Pratyush Chaturvedi

Semester ‘III’ Section ‘B’

Roll no. 108

Submitted to:

Mrs. Priyanka Dhar

Faculty in Family Law

Hidayatullah National Law University

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS 2

INDEX OF AUTHORITIES 3

STATEMENT OF JURISDICTION 4

STATEMENT OF FACTS 5

ISSUES RAISED 6

SUMMARY OF ARGUMENTS 7

WRITTEN PLEADINGS 8

 THE CUSTODY OF THE CHILD WITH THE APPELLANT IS OF

PARAMOUNT IMPORTANCE FOR THE INTEREST, PROGRESS AND
WELFARE OF THE CHILD.

 JUDGEMENT QUASHING THE ORDER OF THE CUSTODY GRANTED TO

THE APPELLANT BY THE HON’ HIGH COURT WAS UNJUST AND
BASED ON IMPROPER GROUNDS.

PRAYER FOR RELIEF 12

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 MEMORIAL ON BEHALF OF APPELLANT

LIST OF ABBREVIATIONS

AC Appeal Cases

AIR All India Reporter

Ors. Others

Art. Article

sec Section

Hon’ Honourable

p. page

SC Supreme Court

HC High Court

v Versus

Act Guardianship and Wards Act, 1890

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 MEMORIAL ON BEHALF OF APPELLANT

INDEX OF AUTHORITIES

JUDICIAL DECISIONS

 Shaik Moidin v. Kunhadevi, AIR 1929 Madras 33

 Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276
 Samuel Stephen Richard v. Stella Richard, AIR 1955 Mad 451

 Lekha v. P. Anil Kumar, Appeal (Civil) 5131 of 2006

 Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306

STATUTES

 Guardianship and Wards Act, 1890

 Constitution of India

DATABASES

 ManuPatra
 SCC Online

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 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

The Appellant is approaching the Hon’ Supreme Court of India under Article 132 of the
Constitution of India under the appellate jurisdiction.

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 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF FACTS

The Marriage between the Appellant and the Respondent was solemnized on 31-01-2000 as
per the Hindu Religious Rites and Ceremonies. Out of the said wedlock a son, namely Raman
was born and he is 12 years old now. At the time of marriage the Respondent was working with
John Deere in U.S.A. After marriage the Appellant and the Respondent lived together for 1
year and thereafter lived separately because of the misunderstanding between them. Since the
harassment and cruelty of the Respondent crossed the extreme extent, the appellant was
compelled to file a petition for divorce on the ground of cruelty. The Respondent also filed a
counter petition under the Guardians and Wards Act for the custody of the 12 years old minor
child, and a petition under section 9 of Hindu Marriage Act for Restitution of Conjugal Right.

The Subordinate Judge of Tripura passed an ex parte decree of divorce in favor of the Appellant
and the petition for restitution of conjugal rights filed by the Respondent 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.

Against the order of the Trial Court, the Respondent filed an appeal before the High Court of
Tripura. The contention of the Respondent was that, contrary to the deposition made by the
Appellant before the trial court that, she would not remarry, immediately after the judgment of
the petition filed under the Guardians and Wards Act, she remarried.

The High Court, without giving an opportunity to express the willingness of the child, allowed
the appeal on the ground of remarriage of the Appellant, i.e., Mother of the child. The High
Court also held that the Respondent – Father is a working in U.S.A and the father is more apt
and suitable to protect the interest of the minor child and also in imparting education to the
required standard of the child.

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 MEMORIAL ON BEHALF OF APPELLANT

ISSUES RAISED

I. WHETHER THE CUSTODY OF THE CHILD WITH THE

APPELLANT IS OF PARAMOUNT IMPORTANCE FOR THE
INTEREST, PROGRESS AND WELFARE OF THE CHILD?

II. WHETHER THE JUDGEMENT QUASHING THE ORDER OF THE

CUSTODY GRANTED TO THE APPELLANT BY THE HON’ HIGH
COURT WAS UNJUST AND BASED ON IMPROPER GROUNDS?

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 MEMORIAL ON BEHALF OF APPELLANT

SUMMARY OF ARGUMENTS

I. THE CUSTODY OF THE CHILD WITH THE APPELLANT IS OF

PARAMOUNT IMPORTANCE FOR THE INTEREST, PROGRESS AND
WELFARE OF THE CHILD.

The order passed by the Hon’ High Court of Tripura cannot be considered as suitable and is
rather unjustifiable as the same has been reached at without considering the welfare of the child
as the single most important factor in deciding whether the Appellant or the Respondent should
have the custody of the child i.e. Raman.

Reference can be drawn to Section 17(1) of the Guardian and Wards Act and various case laws
providing for paramount importance of welfare of child.

II. JUDGEMENT QUASHING THE ORDER OF THE CUSTODY

GRANTED TO THE APPELLANT BY THE HON’ HIGH COURT WAS
UNJUST AND BASED ON IMPROPER GROUNDS.

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. In cases like the present one, the
mother may have shortcomings but that does not imply that she is not deserving of the solace
and custody of her child. If 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 it 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

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 MEMORIAL ON BEHALF OF APPELLANT

WRITTEN PLEADINGS

I. THE CUSTODY OF THE CHILD WITH THE APPELLANT IS OF PARAMOUNT

IMPORTANCE FOR THE INTEREST, PROGRESS AND WELFARE OF THE
CHILD.

The order passed by the Hon’ High Court of Tripura cannot be considered as suitable and is
rather unjustifiable as the same has been reached at without considering the welfare of the child
as the single most important factor in deciding whether the Appellant or the Respondent should
have the custody of the child i.e. Raman.

Unlike how the law deems fit and as was followed by the Subordinate court, Raman was not
interviewed by the HC itself to decide as to whom the child, who is now mature and capable
enough of understanding the peculiarities of the questions and dilemma he faces, wants to live
with.

The Appellant and the Respondent, who though now divorced, have had a valid Hindu
Marriage under Hindu Marriage Act, 1955. When considering the question of the guardianship,
the Guardianship and Wards Act, 1890 is applicable and Section 17(1) of the Act clearly states
that “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.”

In Shaik Moidin v. Kunhadevi, 1 the case of a father, a motor driver, applying for writ of Habeas
Corpus to get custody of his 7 year aged child. Nobody was available in his house to look after
such child. The Full Bench held that the Court has to look to an application under Habeas
Corpus in the interest of the child as being paramount. The Court held that prima- facie in the
eye of the law, the father is the natural guardian and custodian of the person of his child. But it
has been the law for a very long time both in England and in this country that what a Court has
to look to on applications under habeas corpus is the interest of the child as being paramount.

Similarly, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, this Court held as
under: "The principles of law in relation to the custody of a minor appear to be well-established.

1
AIR 1929 Madras 33

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 MEMORIAL ON BEHALF OF APPELLANT

It is well settled that any matter concerning a minor, has to be considered and decided only
from the point of view of the welfare and interest of the minor. In dealing with a matter
concerning a minor, the court has a special responsibility and it is the duty of the Court to
consider the welfare of the minor and to protect the minor's interest. In considering the question
of custody of a minor, the Court has to be guided by the only consideration of the welfare of
the minor.”2

In deciding the question of custody, the welfare of the minor is the paramount consideration
and the fact that the father is the natural guardian would not 'ipso facto' entitle him to
custody. Therefore, the judgement of the HC quashing the decision arrived at by the Sub-
ordinate court is not in accordance with the principle of welfare of the child whose custody has
to be awarded to the parent.

The Appellant submits before the Hon’ Court that the paramount interest and welfare of the
minor lies with the mother of the child because it is only an extreme case where a mother may
not have the interest of her child dearest to her. Since it is the mother who would have the
interest of the minor most at heart, the tender years of a child needing the care, protection and
guidance of the most interested person, the mother has come to be preferred to others.3

2
AIR 1982 SC 1276
3
Samuel Stephen Richard v. Stella Richard, AIR 1955 Mad 451

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 MEMORIAL ON BEHALF OF APPELLANT

II. JUDGEMENT QUASHING THE ORDER OF THE CUSTODY GRANTED TO THE

APPELLANT BY THE HON’ HIGH COURT WAS UNJUST AND BASED ON
IMPROPER GROUNDS.

The order of the High Court is unjustifiable because before passing an order, the High Court
ought to have enquired about the mental make-up of the child to ascertain whether he is willing
to go with his father or not.

According to Section 17(2) of the Guardianship and Wards Act, 1890 “In considering what
will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of
the minor, the character and capacity of the proposed guardian and his nearness of kin to the
minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.”

All the factors as stated above have to be carefully looked into before deciding the custody of
the child. The provision “if wishes” is of relevance in concluding the order in favour of the
appellant as it can easily be observed by the proceedings of the Trial Court where the child has
preferred staying with his mother.

The Trial Court personally interviewed the child. The finding of the High Court that before the
trial Court, the Appellant unequivocally deposed that she would not re-marry for the purpose
of looking after the minor child is totally wrong. Arguing further, it is submitted that it is true
that the appellant deposed that she has no intention to remarry and that it does not mean that
the Appellant gave an undertaking that she would continue to be unmarried in her whole life.
Considering her age and for the welfare of her minor child the Appellant got remarried, the
finding of the High Court is only on the basis of an oral submission and not from any
documentary evidence, hence the order of the High Court is liable to be set aside.

Another pertinent issue that needs attention of the Court is 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 as has been stated
previously. The High Court, in our opinion, ought to have seen that the re-marriage cannot be
taken as a ground for giving custody of the child. There is also no finding by the High Court
that the remarriage has adversely affected the mental condition of the minor child.

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 MEMORIAL ON BEHALF OF APPELLANT

It is expected of the Hon’ Court to put itself in the position of a wise father and be not tired of
the worries which may be occasioned to him in selecting a guardian best fitted to assure the
welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the
ward-a no mean task but the highest fulfilment of the dharmasastra of his own country. 4

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. In cases like the present one, the
mother may have shortcomings but that does not imply that she is not deserving of the solace
and custody of her child. If 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 it 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. 5 The same has been held
in Sura Reddy vs. Chenna Reddy6 where it was clearly laid down that the father ought to be a
guardian of the person and property of the minor under ordinary circumstances and that fact a
Hindu father has married a second wife is no ground whatever for depriving him of his parental
right of custody.

Therefore, it is submitted before the Hon’ Court that the order passed by the HC be quashed as
the same is unjust and based on improper grounds.

4
supra note 3
5
Lekha v. P. Anil Kumar, Appeal (Civil) 5131 of 2006
6
Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306

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 MEMORIAL ON BEHALF OF APPELLANT

PRAYER

In the light of facts of the case, issues raised, arguments advanced and authorities cited, this
Court may be pleased to:

I. Impugn the previous order passed by the Hon’ HC of Tripura

II. Allow the Appellant to have the custody of the child the same being in paramount interest,
progress and well-being of the child.

And pass any other order in favour of the Appellant that it may deem fit in the ends of justice,
equity, and good conscience.

All of which is respectfully submitted.

Place: INDIA (S/d)

Pratyush Chaturvedi

(Counsel for the Appellant)

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