Team Code NLC - 125 (PETITIONER)

4TH INTRA UNIVERSIT4TH INT UNIVERSITY MOOT COURT COMPETITION, 2020
ON BEHALF OF PETITIONE4TH INTRA UNIVERSITY MOOT COURT COMPETITIOON

BEHALF OF PETIT COMPETITION, 2020
ON BEHALF OF PEITIONER
TEAM CODE: NLC 125
SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL

MOOT COURT COMPETITION, 2020
BEFORE THE HON‟BLE SUPREME COURT

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDICA
SPECIAL LEAVE PETITION (CIVIL) ( _____/2020)

IN THE MATTER OF
RAKESH MEHTA & ANOTHER…………............................................ PETITIONER

V.
ARJUN KUMAR & ANOTHER................................................................. RESPONDENTS
WITH
ARJUN KUMAR & ANOTHER................................................................. PETITIONER

V.
RAKESH MEHTA & ANOTHER…………............................................ RESPONDENTS
WRITTEN SUBMISSION ON BEHALF OF PETITIONER

SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020
ON BEHALF OF PETITIONER
TABLE OF CONTENTS
Contents
TABLE OF ABBREVIATIONS ............................................................................................................. 3
TABLE OF AUTHORITIES .................................................................................................................. 5
STATEMENT OF JURISDICTION .......................................................................................................... 7
STATEMENT OF ISSUES ............................................................................................................. 8
STATEMENT OF FACTS.............................................................................................................. 9
SUMMARY OF ARGUMENTS .................................................................................................. 11
ARGUMENTS ADVANCED ...................................................................................................... 13
PRAYER.......................................................................................................................................... 22
2
Table Of Abbreviations
& And
AIHC All India High Court Cases
A.P Andhra Pradesh

Vol. Volume
AIR All India Reporter
Art. Article
FIR First Information Report
RAYE Research Association for Youth

Empowerment
Cri. Criminal
Cri. L.J./ Cr L.J. Criminal Law Journal
Hon‟ble Honorable
ISP Internet Service Provider
YP(HP) Act Young Persons Harmful

Publications Act
NGO Non-Governmental Organization
No. Number
IT Act Information Technology Act

SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Supp Supplementary
3
UOI Union of India
v. Versus
4
Table Of Authorities
CASES
1. Lekha v P. Anil Kumar, (2006) 13 SCC 555.
2. Nil Ratan Kundu and Anr. v. Abhijit Kundu, (2008) 9 SCC 413
3. Nithya Anand Raghavan v. State of NCT of Delhi and Ors., AIR 2017 SC 3137
4. Nirmaljain v. The state of Delhi , AIR Del 120.
5. Essakkayal Nadder v. Sreedharan Babu , AIR 1992 Ker 200
6. Roxann Sharma v. Arun Sharma , (2015) 8 SCC 318.
7. Rosy Jacob v. Jacob Chakramakkal, (1973) 1 SCC 840.
8. In Re Mc. Grath, [1893] 1 Ch. 143.
9. Saraswathibai Shripad v. Shripad Vasanji, AIR 1941 Bom 103.
10. Murari Lal Sidana v. Anita, AIR 2013 Raj 100.
11. Ashish Ranjan v. Anupama Tandon and Anr.
12. Nil Ratan Kundu and Anr. v. Abhijit Kundu, (2008) 9 SCC 413.
13. Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 AP 134.
14. Ghisalal v. Dhapubai AIR 2011 SC 644
STATUTES
1. The Hindu Marriage Act, 1955

2. The Guardians and Ward Act, 1890
3. The Indian Contract Act, 1872
4. The Hindu Minority and Guardianship Act, 1956
5. The Code of Civil Procedures, 1908
6. HINDU ADOPTION AND MAINTENANCE ACT, 1956.
7. The Hindu Widows' Remarriage Act, 1856
5
BOOKS
 Kusum, Family Law (4th ed., 2015).

 P. Diwan, Law of Adoption Minority Guardianship & Custody (4th ed., 2010).
 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
ONLINE DATABASE
1. www.westlawindia.com
2. www.scconline.com
3. www.jstor.org
4. www.manupatra.com
6
Statement of Jurisdiction
The appellant in the present case has approached the Hon‟ble Supreme Court of Indica to initiate
the present appeal under article 136 of the Constitution of Indica. The appellant most humbly and
respectfully submits to the jurisdiction of the Hon‟ble Supreme Court in the present matter.
Article 136 in The Constitution Of Indica 1949:
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India
(2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces
7
STATEMENT OF ISSUES
.
1.
WHETHER ANISHA HAS THE CAPACITY OF GIVING THE CHILD FOR THE
GURDIANSHIP AND ADOPTION TO HER FATHER?
2.
WHETHER THE FINANCIAL CONDITIONS OF THE GURDIAN AND THE WELFARE OF

THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE GIVING AWAY THE
CUSTODY OF THE CHILD?
3.
WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF HIS

DAUGHTER?
8
STATEMENT OF FACTS
PARTIES INVOLVED
MR. RAKESH MEHTA & MRS. SANJANA MEHTA: They are parents of Anisha and at
present they have the custody of the child that is Karan who is Anisha‟s son.
DR. ARJUN KUMAR & MRS. ANJALI KUMAR: They are the parents of Dr. Nereaj who is
late husband of Anisha.
BACKGROUND
Anisha, the daughter of Mrs. Sanjana Mehta and Mr. Rakesh Mehta is a well-established
businesswoman in Palam, New Delhi. Dr. Neeraj, the son of Mrs. Anjali Kumar and Dr. Arjun
Kumar is a PhD holder and a professor at R. M University, New Delhi.
10th December 2007: Anisha got married to Neeraj as per Hindu Rites and she shifted with
Neeraj to stay along with her in-laws at Saket, New Delhi.
In the year 2008: From the said wedlock the couple was blessed with a son named Karan.
They belonged to a middle-class background but afforded all the comforts to Karan and was
loved and pampered by his grandparents. Dr. Arjun enjoyed spending most of the time with his
grandson and used to take Karan to school, vacations and imbibed in him all the valuable morals.
In the year 2014: When Karan was six years old, his father Neeraj passed away. Anisha shifted
to her paternal home along with Karan.
29th November, 2016: She got married to Mr. Rohan, a businessman at Gurgaon, Haryana.
Mr. Rohan already had two sons so Anisha left her child with her parents. Karan was pampered
with love and gifts at his maternal grandparents‟ house. Mr. and Mrs. Mehta had to travel for
work about 300 kms away from their residence and returned home to their grandchild only on
weekends. Two caretakers and a driver were appointed to take him to School 55kms away.
DISPUTE
9
When Mr. and Mrs. Kumar acquainted about Anisha‟s remarriage and the fact that she had not
taken the child along with her, they asked Anisha and her parents for the custody of the child to
which they refused.
RULING OF HC OF DELHI – 16TH DECEMBER, 2019
The High Court also rejected the appeals stating that there is no error of law made by the Family
Court in its orders. .
RULING OF FAMILY COURT– 12TH MARCH, 2018
25th February, 2017: Mr. Kumar filed an application u/s 7 of the Guardians and Wards Act,
1890, for their appointment as guardians and custodian of the child in the Family Court also filed
a separate application for injunction against Anisha restraining her from giving the child in
adoption to anyone including her parents.
26th February, 2017: Granted an ex-parte order of injunction against Anisha, also issued notice
to file objection by 26.3.2017 for show cause.
Mr. Mehta filed objection stating that the child was given to him in adoption by Anisha, verbally
on 22.2.2017 and by a deed of adoption executed and registered on 27.2.2017. He prayed for
vacation of the order of injunction and appointment as guardian of the child on the strength of
the adoption deed.
In the meanwhile, Mr. Kumar had brought a separate suit before the District Judge for
cancellation of the deed of adoption executed in favour of Mr Mehta.
The Family court after hearing the matter:
(i) Rejected the prayer of Mr. Mehta on the ground that the matter of adoption was
pending before the District Court.
(ii) Rejected the prayer of Mr. Kumar on the ground that, in presence of natural guardian
court cannot appoint any guardian.
(iii) Allowed the prayer of Anisha on the sole ground that she was the mother (natural
guardian) of the child.
10
SUMMARY OF ARGUMENTS
ISSUE 1: ANISHA HAS THE CAPACITY OF GIVING THE CHILD FOR THE GURDIAN
AND ADOPTION OF THE CHILD
It is humbly submitted before the Hon‟ble SC that, every natural guardian has an obligation to
act for the best interest of his child. This includes taking care of the interests of the child,
fulfilling his needs such as educational, medical and etc., Anisha is capable of taking care of
these.
“The re-marriage 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.” “It
is only an extreme case where a mother may not have the interest of her child most dear 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."1
ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE WELFARE

OF THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE GIVING
AWAY THE CUSTODY OF THE CHILD.
It is humbly submitted before the Hon‟ble SC that the Court has to ensure that the guardian so
appointed have a reliable source of earning a livelihood and income to support the child so that
he gets all the educational facilities in order for his growth. The welfare of the child is always the
paramount consideration, but in some situations, the court has to consider the aspect of the
economic well-being of any of the parties.
Going by the facts, Mr and Mrs Mehta are both working and the grandchild is well maintained
by them, as it is stated that two caretakers as well as one driver was appointed by the petitioners
and although they had to go for work 300kms away from their residence, they used to spend the
weekend with Karan and was kept in the lap of luxury and was well showered with love.
1
Lekha v P. Anil Kumar, (2006) 13 SCC 555.
11
ISSUE 3: WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF

HIS DAUGHTER?
3.1WHETHER THE MATERNAL GRANDFATHER CAN BECOME A

GURDIAN?
Custody to a third party is allotted only in certain special circumstances. This memorial
will examine the cases in which custody is allotted to third party, specifically to
grandparents.
3.2 WHETHER THE ADOPTION MADE IS VALID
It is humbly submitted before the Hon‟ble SC that, a verbal adoption was made on 22nd
Feb, 2017 which was duly registered on 27th Feb, 2017. It is not in dispute that Karan was
adopted by the the petitioner by way of a registered adoption deed. Merely because, the
legality of the adoption deed is questioned by the respondent by filing a suit before the
Court of competent jurisdiction, the same does not become inoperative. For the adoption
to be valid there has to be consent of wife which was duly obtained. Further vide section
15 of the Hindu Adoptions and Maintenance Act; a valid Adoption cannot be cancelled.
The adopted child cannot renounce his status and return to the family of his birth. His
membership in the adoptive family becomes permanent.
12
ARGUMENTS ADVANCED
ISSUE 1: ANISHA HAS THE CAPACITY OF GIVING THE CHILD FOR THE GURDIAN
AND ADOPTION OF THE CHILD
It is humbly submitted before the SC that:
1. Mrs. Anisha is the natural guardians of the child as per the provisions of the guardians
and wards act, 1890 [A] and as per the provisions of the Hindu Minority and
Guardianship Act, 1956 [B].
2. At the first place, the remarriage of Anisha cannot obscure the fact that the she is the
natural guardian of the child, since she is his biological mother and would also continue
to be his guardian until she is death.
Section 4(c) of the Hindu minority and guardianship act, 1956 reads-
“Natural guardian” means any of the guardians mentioned in section 6(a), which reads-
“ the natural guardian of a Hindu minor in case of a boy is his father, and after him, the
mother; provided that the custody of a minor who has not completed the age of 5 years
shall ordinarily be with the mother.
Section 4(c) when read along with section 6(a) of the Hindu guardianship act, 1956,
would reveal how biased and partial is the statute which encourages paternity irrespective
of taking into account the welfare of the child.
3. The court is under a duty to appoint the most suitable person amongst the claimants for
guardianship. Under section 17 of the Act a person who under the personal law would be
entitled to the custody of the child in preference to anyone else should be appointed as the
guardian. According to the Hindu Law father is the natural guardian of a minor and in the
next place mother is the natural guardian and mother too can be deprived of if it can be
shown that she is unfit to act as guardian.2 According to the section 19 if the father is
2
Nirmaljain v. The state of Delhi , AIR Del 120.
13
living, then in view of the section 19(b) thereof; no one else can be declared of appointed
to be the guardian of the person of the minor, unless the court is of opinion that the father
is unfit to be a guardian.3
4. The mother is the natural guardian of her illegitimate minors. In case of legitimate
minors, the mother has right to custody of a minor less than 5 yrs of age. This does not
mean that mother does not have the right to custody after 5 yrs of age. In case of Sheela
vs Soli, 1981 Bom HC, it was held that a mother's right to guardianship is not lost upon
conversion to another religion if she is able to provide proper care to the minor. Further,
in Kumar vs Chethana AIR 2004, SC has held that the mother's right to guardianship is
not lost automatically after her remarriage. In all such cases, welfare of the child has to be
considered above all including the convenience and pleasure of the parents.
5. In Essakkayal Nadder v. SreedharanBabu4case, the mother of the minor children was
dead, but the father was not residing with the children, who were being looked by the
aunty. It was held that though father was not residing with his children, he is still alive,
has not ceased to be a Hindu or renounced the world and has not been declared unfit. This
does not authorize any other person to assume the role of Natural guardian. Sec. 6 of the
Hindu minority and Guardianship act, 1956 states that father is the natural guardian of a
minor. Section6 (a) states the phrase “the father and after him, the mother”.
6. According to Section 15 of the Hindu Marriage Act, 1955, “Moreover, remarriage of the
Respondent does not seem to hinder her role as a mother or guardian, so her position as a
guardian is undisputable. Neither would it affect the upbringing of the child. Rather it
would make the family stable, and rekindle the loss happiness due to separation of the
Appellant and the Respondent.5
7. It is humbly submitted before the Hon‟ble SC that, every natural guardian has an
obligation to act for the best interest of his child. This includes taking care of the interests
of the child, fulfilling his needs such as educational, medical and etc. and Anisha is
capable to taking care of these.
3
Supra
4
Essakkayal Nadder v. Sreedharan Babu , AIR 1992 Ker 200.
5
The Hindu Marriage Act, 1955
14
8. “The re-marriage 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.” “It is only an extreme case where a mother may not have the interest of her
child most dear 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."6
9. In the instant case, till Mrs. Anisha is alive she will remain the Natural guardian of the
child as per the provisions of Hindu Minority and Guardianship Act, 1956. It is pertinent
to note that Hindu Minority and Guardianship Act, 1956 s. 6 states that father is the
natural guardian in all the cases.7 Section6 (a) states the phrase “the father and after him,
the mother”.
ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE

WELFARE OF THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE
GIVING AWAY THE CUSTODY OF THE CHILD.
It is humbly submitted before the SC that:
It is a proposition so well-known and established that it cannot be questioned at all that the
welfare of the minor is the prime consideration in such matters 8 and even the paramount right of
the father as the natural guardian should be subordinate to the welfare of the minor.9
2.1 FINANCIAL CONDITION TO BE DETERMINED
In Rosy Jacob10, the Court held that the object and the purpose of 1890 Act is not merely
physical custody of the minor but due protection of the rights of ward's health,
6
Lekha v P. Anil Kumar, (2006) 13 SCC 555.
7
Roxann Sharma v. Arun Sharma , (2015) 8 SCC 318.
8
Supra 2
9
Supra 3.
10
Rosy Jacob v. Jacob Chakramakkal, (1973) 1 SCC 840.
15
maintenance and education. In the welfare of the minors, more important are the stability
and security.11 It is important to make a comparison between the comforts and stability a
person can give to a minor. The petitioner belongs to an aristocratic lineage, has
economic stability and is respectable citizens of the country. On the other hand the
respondent is a retired person who will incur medical expenses in the coming future and
will lose his economic stability soon. The economically stable family of the petitioner
would provide a safe and secure atmosphere for the proper development of Karan. In
Saraswathibai Shripad v. Shripad Vasanji12, the High Court of Bombay stated; “It is not
the welfare of the father, nor the welfare of the mother that is the paramount
consideration for the Court. It is the welfare of the minor and the minor alone which is of
paramount consideration.” The child is very happy and emotionally settled with the
petitioner and his family. In such circumstances the High Court preferred the custody of
the minor to the grandparents.13
Admittedly the minor boy has been living with the petitioner since the death of his father
in the 2014. In Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju 14 the court
considered the attachment with time factor and remarked “The grandmother and the child
were both present in the Court throughout the hearing of the appeal and we saw the
obvious attachment of the child to her grandmother.” In the same case it was discussed
that there are certain wants and need of a child which could not be administered by the
respondent at all.
The definition of „child in need of care and protection’ is mentioned in section 2(14) of
the Juvenile Justice Act. The children in the instant case do not fall under the same.
Although the scheme of juvenile justice may suggest that it is for the welfare of the
children, the children who are to be considered in need of care and protection are the ones
who are in danger or need in the real sense like, children who are homeless and without
ostensible means of subsistence 15 or abandoned or are mentally ill or physically
11
In Re Mc. Grath, [1893] 1 Ch. 143.
12
Saraswathibai Shripad v. Shripad Vasanji, AIR 1941 Bom 103.
13
Murari Lal Sidana v. Anita, AIR 2013 Raj 100.
14
Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 AP 134.
15
Section 2 (14) (i), Juvenile Justice (Care and Protection of Children) Act, 2015.
16
challenged 16 or are subjects to begging or child labour 17 , cruelty, begging, neglect 18 ,

abuse, torture or exploitation19 for the purpose of sexual abuse illegal acts or threatened
to kill. 20 After the demise of the minor‟s father the Karan resided with his maternal
grandparents who are reasonably well off and are competent to take care of the children.
2.2 OVERALL WELFARE OF THE CHILD NOT TO BE NEGLECTED
Principle of „best interest’ governing custody of minor children is fairly well-settled. A
Court of law should keep in mind relevant statutes and the rights flowing there from. But
such cases cannot be decided solely by interpreting legal provisions. It is a humane
problem and is required to be solved with human touch. In selecting proper guardian of a
minor to whom the custody could be entrusted, the paramount consideration should be
the welfare and well-being of the child.21 In selecting a guardian, the Court is exercising
Parens Patriae jurisdiction and is expected, nay bound, to give due weight to a child's
ordinary comfort, contentment, health, education, intellectual development and
favourable surroundings.22
The Psychological Parent Doctrine: In the book Beyond the Best Interest of Child23, it is
stated that“Whether any adult becomes the psychological parent of a child is based thus
on day-to-day interaction, companionship and shared experiences. The role can be
fulfilled either by a biological parent or by an adoptive parent or by any other caring
adult-but never by an absent, inactive adult, whatever his biological or legal relationship
to the child may be”. The central thoughts are that the child's development depends upon
the continuity and character of his relationship with the adult he perceives as his parent,
and that this perception rather than the fact of biological parenthood is the basis of their
16
Section 2 (14) (iv), Juvenile Justice (Care and Protection of Children) Act, 2015.
17
Section 2 (14) (ii), Juvenile Justice (Care and Protection of Children) Act, 2015.
18
Section 2 (14) (iii) (c), Juvenile Justice (Care and Protection of Children) Act, 2015.
19
Section 2 (14) (viii), Juvenile Justice (Care and Protection of Children) Act, 2015.
20
Section 2 (14) (iii) (b), Juvenile Justice (Care and Protection of Children) Act, 2015.
21
Ashish Ranjan v. Anupama Tandon and Anr. (2010) 14 SCC 274 ¶18; Shyamrao Maroti v. Deepak Kisanrao
(2010) 10 SCC 314 ¶13; Mohan Kumar Rayana v. Komal Mohan Rayana, (2010) 5 SCC 657 ¶7; Vikram Vir Vohra
v. Shalini Bhalla, (2010) 4 SCC 409 ¶ 14; Shilpa Aggarwal v. Aviral Mittal and Anr, (2010) 1 SCC 591 ¶26.
22
Nil Ratan Kundu and Anr. v. Abhijit Kundu, (2008) 9 SCC 413.
23
Joseph Goldstein, AnnaFreud and Albert J. Solnit, Beyond the Best Interests of the Child, 19, (1st ed., 1973).
17
relation.24 Such a relationship was shared between Karan and the maternal grandparents,
Karan has been living with his maternal grandparents for almost three year now, it is also
pertinent to note that Karan was found happy and healthy.
The De Facto Parent Doctrine: This doctrine focuses on the relationship that the child
develops with a third party and looks at whether the party lives in the same home as the
child, providing basic care giving functions. The doctrine focuses on the same issue:
Whether a child has developed a parent-child bond with a third party.25 It is very evident
that in the present case Karan has developed such bond with his maternal grandparents as
almost three year has elapsed that Karan has been continuously residing with the
maternal grandmother, i.e. the petitioner. If a new relationship has been formed with the
third party custodian, court enforcement of a further change in custody may, by effecting
this new separation, markedly diminish the child's willingness or ability to form new
relationships, and thus substantially curb his development.26 It is important to protect the
rights of parents regarding their child; it is sometimes in a child‟s best interests to allow
for third parties who meet certain requirements to obtain custody of a child. The maternal
grandparents have shown a deep love and affection for Karan, having cared for him,
provided for him in a manner indicating a deep love and affection therefore the best
interests and welfare of Karan would be served by continuing the custody with the
maternal grandparents that is the petitioner.
Admittedly the minor boy has been living with the petitioner since the death of his father
in the 2014. In Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju 27 the court
considered the attachment with time factor and remarked “The grandmother and the child
24
Peter L. Strauss and Joanna B. Strauss, Beyond the Best Interests of the Child by Joseph Goldstein, AnnaFreud
and Albert J. Solnit, 74, Columbia Law Review Association, Inc., 996, 997, (1974), available
at http://www.jstor.org/stable/1121526, last seen on 09/04/2018.
25
Elizabeth Barker Brandt, De Facto Custodians: A Response to the Needs of Informal Kin Caregivers,38,
American Bar Association, 291, 305, (2004), available at http://www.jstor.org/stable/25740465, last seen on
10/04/2018.
26
Alternatives to "Parental Right" in Child Custody Disputes Involving Third Parties, 73, The Yale Law Journal,
151, 158 , 1963, available at http://www.jstor.org/stable/794597, last seen on 27/03/2018.
27
Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 AP 134.
18
were both present in the Court throughout the hearing of the appeal and we saw the
obvious attachment of the child to her grandmother.” In the same case it was discussed
that there are certain wants and need of a child which could not be administered by the
respondent at all.
ISSUE 3: WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF

HIS DAUGHTER?
A guardian's rights and responsibilities are essentially the same as a parent's with respect to a
minor child. As a grandparent with legal guardianship of your grandchild, you have the
responsibility for their day-to-day care and supervision and the obligation to act in their best
interests. You have the right to make decisions for him regarding healthcare, finances, and
education. If they have money, you may be responsible for managing it. If the guardianship is
permanent, you are financially responsible for supporting them, but if it is temporary, their
parents may be ordered to provide some support
3.1WHETHER THE MATERNAL GRANDFATHER CAN BECOME A

GURDIAN?
The Supreme Court expressed the position of law in the following terms;
Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down
that no adoption shall be valid unless the person adopting has the capacity as also the
right to take in adoption; the person giving in adoption has the capacity to do so; the
person adopted is capable of being taken in adoption, and the adoption is made in
compliance with the other conditions mentioned in Chapter II. Section 7 lays down that
any male Hindu who is of sound mind and is not minor has the capacity to take a son
or a daughter in adoption. This is subject to the rider enshrined in the proviso which
lays down that if the male Hindu has a wife living then he shall not adopt except with
the consent of his wife unless she is incapacitated to give the consent by reason of her
having completely and finally renounced the world or her having ceased to be a Hindu
or she has been declared by a court of competent jurisdiction to be of unsound mind.
The explanation appended to Section 7 lays down that if a person has more than one wife
living at the time of adoption, then the consent of all the wives is sine qua non for a valid
19
adoption unless either of them suffers from any of the disabilities specified in the proviso
to Section 7. Section 8 enumerates the conditions, which must be satisfied for adoption
by a female Hindu. Section 12 deals with effects of adoption. It declares that from the
date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or
mother for all purposes and his ties in the family of his or her birth shall stand severed
and replaced by those created in the adoptive family. Proviso (a) to this section contains a
restriction on the marriage of adopted child with a person to whom he or she could not
have married if he or she had continued in the family of his or her birth. Clause (b) of the
proviso saves the vested right of the adopted child in the property subject to the
obligations, if any, attached to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lays
down that the adopted child shall not divest any person of any estate vested in him or her
before the date of adoption. Section 16 which embodies a rule of presumption lays down
that whenever any document registered under any law for the time being in force
evidencing adoption and signed by the person giving and person taking the child in
adoption is produced before any court, then it shall presume that the adoption has been
made after complying with the provisions of the Act unless proved otherwise.
3.2 WHETHER THE ADOPTION MADE IS VALID
Whenever any document registered under any law for the time being in force is produced
before any court purporting to record an adoption made and is signed by the person
giving and the person taking the child in adoption, the court shall presume that the
adoption has been made in compliance with the provisions of The Hindu Marriage and
Adoption Act. The proof of giving and taking is not necessary. In the present case there
was a process of giving and taking by a lawful guardian verbally on 22nd Feb, 2017 and
the same was registered on 27th Feb, 2017. The verbal contract is sufficient to prove
circumstantially the giving and taking of the Child. If the so registered deed is disputed
then the person questioning such validity holds the onus to prove.
Consent of wife required for valid adoption by Hindu Male: Supreme Court
20
Making a reference to the provisions of the Hindu Adoptions and Maintenance Act, 1956
and contrasting it with the Hindu law as prevailing before its enactment, the Supreme
Court in its recent decision [Ghisalal v. Dhapubai28 , later reported as] has declared that
it is mandatory for a Hindu male to take consent of his wife, unless she is
incapacitated from giving consent, before adopting a child.
Further the adoption made was by competent persons and the child to be adopted must
was actually given and taken in adoption by the parents or guardian concerned or under
their authority with intent to transfer the child from the family or its both (or in the case
of an abandoned child or child whose parentage is not known, from the place or family
where it has been brought up) to the family of its adoption.
The person adopting should have the capacity to take a child in adoption. Such capacity
exists when he is of sound mind and is not minor. A bachelor can adopt. If the adopter
has a wife, he shall take her consent. If he has more than one wife , the consent of all
wives is necessary. Before the commencement of the Hindu adoptions and maintenance
Act, 1956, the wife had no such power. The person giving in adoption should have the
capacity to do so. While the father is alive generally he alone can give in adoption but he
can do so only with the consent of the mother of the child unless she has renounced the
world or cased to be Hindu or has been declared to be of unsound mind by a court of
competent jurisdiction. The mother can give the child in adoption if the father of the child
is dead or has renounced the world or has ceased to be a Hindu or has been declared to be
of unsound mind by a court of competent jurisdiction. Hence in the given case both the
parties are under capacity.
28
AIR 2011 SC 644
21
Prayer
Wherefore in the light of Issues raised, Arguments advanced and Authorities cited, the Counsel on behalf
of the Petitioner most humbly pray before this Hon’ble Court to be pleased to adjudge and declare:
I. THAT THE IMPUGNED ORDER PASSED BY THE HIGH COURT IS ULTRA VIRES AND NOT IN THE
WELFARE OF THE CHILD AND THEREFORE BE SET ASIDE.
II. THAT THE CUSTODY IN CONSONANCE WITH THE WELFARE AND BEST INTERESTS OF THE
CHILDLIES WITH THE PETITIONER, MR MEHTA.
And to pass any order or relief in favour of the Petitioner that this Court may deem fit in the larger
interests of Justice.
All of which is most respectfully submitted
22

Team Code NLC - 125 (PETITIONER)

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4TH INTRA UNIVERSIT4TH INT UNIVERSITY MOOT COURT COMPETITION, 2020

ON BEHALF OF PETITIONE4TH INTRA UNIVERSITY MOOT COURT COMPETITIOON

SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL

BEFORE THE HON‟BLE SUPREME COURT

SPECIAL LEAVE PETITION (CIVIL) ( _____/2020)

RAKESH MEHTA & ANOTHER…………............................................ PETITIONER

ARJUN KUMAR & ANOTHER................................................................. RESPONDENTS

ARJUN KUMAR & ANOTHER................................................................. PETITIONER

RAKESH MEHTA & ANOTHER…………............................................ RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

AIHC All India High Court Cases

A.P Andhra Pradesh

FIR First Information Report

RAYE Research Association for Youth

ISP Internet Service Provider

YP(HP) Act Young Persons Harmful

NGO Non-Governmental Organization

IT Act Information Technology Act

SCC Supreme Court Cases

SCR Supreme Court Reports

UOI Union of India

1. Lekha v P. Anil Kumar, (2006) 13 SCC 555.

1. The Hindu Marriage Act, 1955

 Kusum, Family Law (4th ed., 2015).

 Universal Hindu Law Bare Act, 2009

 C. K. Takwani, Civil Procedures with Limitation Act, 1963, 7th Edition

Article 136 in The Constitution Of Indica 1949:

136. Special leave to appeal by the Supreme Court

(2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or

WHETHER THE FINANCIAL CONDITIONS OF THE GURDIAN AND THE WELFARE OF

WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF HIS

RULING OF HC OF DELHI – 16TH DECEMBER, 2019

Court in its orders. .

RULING OF FAMILY COURT– 12TH MARCH, 2018

The Family court after hearing the matter:

ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE WELFARE

ISSUE 3: WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF

3.1WHETHER THE MATERNAL GRANDFATHER CAN BECOME A

3.2 WHETHER THE ADOPTION MADE IS VALID

It is humbly submitted before the SC that:

ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE

It is humbly submitted before the SC that:

2.1 FINANCIAL CONDITION TO BE DETERMINED

challenged 16 or are subjects to begging or child labour 17 , cruelty, begging, neglect 18 ,

ISSUE 3: WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF

3.1WHETHER THE MATERNAL GRANDFATHER CAN BECOME A

3.2 WHETHER THE ADOPTION MADE IS VALID

All of which is most respectfully submitted

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