DL 116 (P)

SAMAR KUMAR BASU NATIONAL MOOT COURT COMPETITION-2023 DL-116
DL - 116
SAMAR KUMAR BASU NATIONAL MOOT COURT COMPETITION, 2023
BEFORE THE HON’BLE SUPREME COURT OF INDIA
IN THE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION
SLP NO.__/2023
IN THE MATTER OF
MR. SANJAY BEHTA…………………………………………………… PETITIONER
v.
MRS. DIVYA SETH……………………………………………………….RESPONDENT
PETITION INVOKED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
-MEMORIAL ON BEHALF OF THE PETITIONER-
1|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

TABLE OF CONTENTS
LIST OF ABBREVIATIONS ....................................................................................................................... 4

INDEX OF AUTHORITIES......................................................................................................................... 5
LIST OF CASES....................................................................................................................................... 5
STATUTES............................................................................................................................................... 6
JOURNALS .............................................................................................................................................. 7
BOOKS ..................................................................................................................................................... 8
INTERNATIONAL CONVENTIONS ..................................................................................................... 8
STATEMENT OF JURISDICTION ............................................................................................................. 9
STATEMENT OF FACTS ......................................................................................................................... 10
STATEMENT OF ISSUES ........................................................................................................................ 12
SUMMARY OF ARGUMENTS ................................................................................................................ 13
ARGUMENTS ADVANCED .................................................................................................................... 15
ISSUE 1 ...................................................................................................................................................... 15
WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON HIS OWN
WELFARE ESPECIALLY WHEN SUCH DECISION RELATES TO COMPLEX ISSUES OF
GENDER IDENTITY? ........................................................................................................................... 15
1.1 THE POSITION OF THE CHILD IN VARIOUS PROVISIONS AND THEIR DEFINITIONS
15
1.2 REGULATION OF PROTECTION OF CHILD UNDER CONSTITUTION OF INDIA .............. 17
ISSUE 2 ...................................................................................................................................................... 21
WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING ANUBHAV FOR
HIS GENDER REASSIGNMENT SURGERY WITHOUT CONSENT OF MR. SANJAY AMOUNT
TO CRUELTY AND ACTING AGAINST WELFARE OF CHILD? ................................................... 21
2.1 DEFINITION OF CRUELTY IN DIFFERENT STATUTES .......................................................... 21
2.2 PARENTAL CONSENT .................................................................................................................. 24
2.3 WELFARE OF THE CHILD IS PARAMOUNT ............................................................................. 26
ISSUE 3 ...................................................................................................................................................... 28
WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS DECISION TO
UNDERGO GENDER REASSIGNMENT SURGERY CAN BE TERMED AS ACTING AGAINST
THE WELFARE OF CHILD? ................................................................................................................ 28

3.1 MR. SETH DECISION OF GENDER REASSIGNMENT FOR THE HIS CHILD WELFARE .. 29
3.2 GENDER REASSIGNMENT SURGERY CANNOT BE TERMED AGAINST THE WELFARE
OF CHILD. ............................................................................................................................................. 30
PRAYER ..................................................................................................................................................... 34

LIST OF ABBREVIATIONS
S. No. ABBREVIATION MEANING

1. & And
2. Ors. Others
3. Anr. Another
4. AIR All India Report
5. Art. Article
6. SC Supreme Court
7. SCC Supreme Court Cases
8. SCR Supreme Court Record
9. U.S. United States
10. v. Versus
11. Para Paragraph
12. Pt. Point
13. J. Justice
14. Admn. Administration
15. Re Reference
16. u/a Under Article
17. Ed. Edition
18. Hon‟ble Honorable
19. p. Page
20. i.e., That is
21. UOI Union Of India
22. Sec. Section
23. UN United Nations
24. NALSA National Legal Services
Authority

INDEX OF AUTHORITIES
LIST OF CASES
S. NO. CITATION
1. Ram Krishna Dalmia v. S.R. Tendolkar, 1959 SCR 279

2. State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1
3. Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2010) 10 SCC 314.
4. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
5. A.K. Gopalan v. State of Madras, 1950 SCC 228.
6. Ramchander v. Ananta, (2015) 11 SCC 539.
7. N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326.
8. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
9. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228
10. Re Alex (2004) 31 Fam LR 503.
11. Re Brodie (Special Medical Procedure) [2008] FamCA 334.
12. Re Bernadette [2010] FamCA 94.
13. Re O (Special Medical Procedure) [2010] FamCA 1153.
14. Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948.
15. Re Rosie (Special Medical Procedure) [2011] FamCA 63.
16. Re Jodie [2013] FamCA 62.
17. Gillick v West Norfolk and Wisbech Area Health Authority ,1986 AC 112.
19. State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1
20. Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2010) 10 SCC 314.
21. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
22. A.K. Gopalan v. State of Madras, 1950 SCC 228.
23. Ramchander v. Ananta, (2015) 11 SCC 539.
24. N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326.

25. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.

26. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228
27. Re Alex (2004) 31 Fam LR 503.
28. Re Brodie (Special Medical Procedure) [2008] FamCA 334.
29. Re Bernadette [2010] FamCA 94.
30. Re O (Special Medical Procedure) [2010] FamCA 1153.
31. Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948.
32. Re Rosie (Special Medical Procedure) [2011] FamCA 63.
33. Re Jodie [2013] FamCA 62.
34. Gillick v West Norfolk and Wisbech Area Health Authority ,1986 AC 112.
STATUTES
CONSTITUTION OF INDIA, 1950
JUVENILE JUSTICE ACT, 2015
HINDU MINORITY AND GUARDIANSHIP ACT,1956
THE GUARDIANS AND WARDS ACT,1890
HINDU MARRIAGE ACT , 1955
INDIAN CONTRACT ACT,1872
INDIAN PENAL CODE,1860
INDIAN EVIDENCE ACT, 1872

JOURNALS
1. Mahapatra, M.. Cauldron of Defining" Cruelty" in Indian Family Laws. Supremo

Amicus, 28, p.322, (2022).
2. McHugh Paul, Transgenderism: A pathogenic meme. Public Discourse. (2015).
3. Fitzgibbons, R.P. , The psychopathology of “sex reassignment” surgery: Assessing its

medical, psychological, and ethical appropriateness. The National Catholic Bioethics
Quarterly, 9(1), pp.97-125, (2009).
4. McHugh Paul, Transgender surgery isn't the solution ,The Wall Street Journal. (2014).
5. Seth A. Jacobs, The Determination of Medical Necessity: Medicaid Funding for Sex-
Reassignment Surgery, 31 Case W. Rsrv. L. Rev. 179 (1980),
https://scholarlycommons.law.case.edu/caselrev/vol31/iss1/7.
6. Gupta, R., & Murarka, A. (2009). Treating transsexuals in India: History, prerequisites for
surgery and legal issues. Indian journal of plastic surgery : official publication of the
Association of Plastic Surgeons of India, (2009).
7. Coleman E, Bockting W, Botzer M, et al. Standards of Care for the Health of

Transsexual, Transgender, and Gender-Nonconforming People , Version 7, International
Journal of Transgenderism , (2012).
8. Hadj-Moussa M, Ohl DA, Kuzon WM Jr. , Evaluation and Treatment of Gender

Dysphoria to Prepare for Gender Confirmation Surgery. Sex Med Rev. (2018).
9. Wylie K, Knudson G, Khan SI, Bonierbale M, Watanyusakul S, Baral S , Serving

transgender people: clinical care considerations and service delivery models in
transgender health , (2016).
BOOKS
V.N Shukla, Constitution of India (Eastern Book Company,11th Edn)
T.K. Tope, Constitutional Law of India (Eastern Book Company, 3rd Edn 2010)
Srinivasan‟s , Commentary on The Hindu Minority and Guardianship ,1956 (Delhi Law House ,
3rd Edn 2021)
INTERNATIONAL CONVENTIONS
United Nations Convention on the Right of Child, 1989
Universal Declaration of Human Rights (1948)
International Covenant of Civil and Political Rights, 1976
European Convention on Human Rights, 1953

STATEMENT OF JURISDICTION
The Petitioner humbly approaches the Hon‟ble SUPREME COURT of India under Art.136 of
the Constitution.
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.

STATEMENT OF FACTS
THE BACKGROUND
Mrs. Divya Seth is an Indian lawyer married to another lawyer, Mr. Sanjay Behta. Both of them
used to practice at the Allahabad High Court, Lucknow Bench.
Dates and Events-
S.NO. DATE/ YEAR EVENTS

1. 2009 The couple was blessed with a biological boy
Anubhav Seth.
2. 2019 Anubhav, who was in 6th grade, was bullied by his
classmates and was called gay by some of them
3. 1.08.2019 He shared the entire scenario regarding bullying
and admitted that he feels more comfortable with
girls than boys with his parents.
4. 10.08.2019 Sanjay took him to one of India‟s best
psychologists, and after a thorough examination,
the conclusion was that Anubhav was suffering
from Gender Dysphoria.
5. 1.09.2019 The couple had an ugly fight over such significant
choices affecting their son‟s life. The quarrel grew
worse, and in the heat of the quarrel, Mr. Sanjay
slapped his wife.
6. 20.01.2020 Mrs. Divya took Anubhav to Delhi, against the
wishes and consent of Mr. Sanjay, for gender
reassignment surgery, which was successful, and
now Anubhav was a girl.
7. 6.02.2020 Mr. Sanjay filed a petition/ application for divorce
10 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

on the ground of Cruelty and sought custody and

guardianship of Anubhav before the family court.
8. 2.03.2021 The family court granted divorce on the grounds of
cruelty and custody of Anubhav to his father. Also,
he was declared the legal guardian of his child.
9. 6.04.2022 The High Court set aside the judgment and order
dated March 2, 2021, passed by the Family Court
and gave custody of Anubhav to Mrs. Divya and
declared her his legal guardian.
10. 18.04.2022 Aggrieved by the judgment and order passed by the
High Court, Mr. Sanjay filed an appeal before the
Hon‟ble Supreme Court.

STATEMENT OF ISSUES
ISSUE I
WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON

HIS OWN WELFARE ESPECIALLY WHEN SUCH DECISION RELATES TO
COMPLEX ISSUES OF GENDER IDENTITY?
ISSUE II
WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING

ANUBHAV FOR HIS GENDER REASSIGNMENT SURGERY WITHOUT CONSENT
OF MR. SANJAY AMOUNT TO CRUELTY AND ACTING AGAINST WELFARE OF
CHILD?
ISSUE III
WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS

DECISION TO UNDERGO GENDER REASSIGNMENT SURGERY CAN BE TERMED
AS ACTING AGAINST THE WELFARE OF CHILD?

SUMMARY OF ARGUMENTS
1. WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION

UPON HIS OWN WELFARE ESPECIALLY WHEN SUCH DECISION
RELATES TO COMPLEX ISSUES OF GENDER IDENTITY?
An 11-year-old child is too young to make decisions for himself about complex problems
like gender identity. The term "child" is defined in many sections of Indian law, and each
section describes a different situation for children. Children and minors are those who
have not reached the age of majority, which is 18 years. There are some limitations on
how children can be regulated under the Indian Constitution, such as those in Art. 14,
Art.19 & Art. 21. They also have restrictions on their freedom of speech and expression
in terms of morality, and their right to life and personal liberty are limited in accordance
with procedure established by law.
2. WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING

ANUBHAV FOR HIS GENDER REASSIGNMENT SURGERY WITHOUT
CONSENT OF MR. SANJAY AMOUNT TO CRUELTY AND ACTING AGAINST
WELFARE OF CHILD?
It is humbly submitted before the Hon‟ble Court that the actions of Mrs. Divya Seth
supporting and taking Anubhav for his gender reassignment surgery without consent of
Mr. Sanjay amounts to cruelty and acting against welfare of child. Mrs. Seth's action
amounts to mental abuse and goes against Mr. Sanjay's desire to forego gender
reassignment surgery. Because he was worried about his son's welfare and was a
concerned father, Mr. Sanjay decided against gender modification surgery when the boy
was so young. From the kind of attitude, conduct, and treatment discussed in the
preceding paragraph, it can readily be inferred that the appellant has every reason to
believe that it is not healthy for him or for his child's welfare.

3. WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS

DECISION TO UNDERGO GENDER REASSIGNMENT SURGERY CAN BE
TERMED AS ACTING AGAINST THE WELFARE OF CHILD?
Child welfare practices and decision-making center around service plans, but few recent
studies have focused specifically on service plans and their use in routine child welfare
settings. Anubhav, being a minor under the Indian Majority Act, is incapable of taking
his own decision as he is eleven years old. The Punjab and Haryana High Court ruled in
Preeti v State of Haryana that children attain psychological and physiological maturity
much prior to the age of majority. The legal age of the majority is determined by when
the minor typically achieves mental and physical maturity, depending on societal values,
socioeconomic factors, and what society expects from its minors. Parents and
caseworkers perceive service plans as directives and compliance as parental task
completion and cooperation.

ARGUMENTS ADVANCED
ISSUE 1
WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON

HIS OWN WELFARE ESPECIALLY WHEN SUCH DECISION RELATES TO
COMPLEX ISSUES OF GENDER IDENTITY?
It is humbly submitted before the Hon‟ble court that a child of tender age of 11 years cannot take
decision upon his own welfare especially when such decision relates to complex issues of gender
identity.
1.1 THE POSITION OF THE CHILD IN VARIOUS PROVISIONS AND THEIR

DEFINITIONS
UNDER INDIAN LAW
1. There is a different concept of child. These include children who invokes right to
maintenance & support, special discrimination; treating children‟s as especially vulnerable
for ensuring rights to protection, discrimination based on age of the child, different provision
for the different age group child; for their nurturing and advancement. The term “child” has
been employed in many pieces of legislation to signify relationships, capacity, and special
protection. Referring Juvenile justice (Care & Protection of children) Act, 20151: A person
who has not reached the age of eighteen is referred as a “child”. According to the Hindu
Minority & Guardianship Act, 1956, a “minor” as a person who has not completed the age of
18 years2. Every person residing in India must be at least 18 years old to become a majority,
according to Sec. 3(1) of the Hindu Minority Act of 18753 . The above provisions states that
Anubhav who is a child of 11 years is a minor child.
2. In accordance with Sec. 83 of the IPC4, it grants a child who is over 7 but under 12 years old
partial exemption from criminal culpability. Sec. 83 states that “Act of a child above 7 and
1
Juvenile justice (Care & Protection of children) Act, 2015 ,Sec.2(12), No. 2 , Acts of Parliament , 2015(India).
2
Hindu Minority and Guardianship Act, 1956, Sec. 4(a) , No.32, Acts of Parliament, 1956(India).
3
Hindu Majority Act, 1875,Sec.3 , No.9 , Acts of Parliament, 1875(India).
4
Indian Penal Code, 1860 , No.45 , Acts of Parliament , 1860 (India).
under 12 of immature understanding”. In addition, under IPC, minor children have certain
privileges in terms of Punishment. By examining the relevant considerations, the Indian Law
assertion that children aged 7 to 12 are not fully capable of comprehending & maturing.
Therefore, we seek to demonstrate that an 11-year-old child cannot possess the requisite
capacity to engage in decision concerning their gender identity. In the recent problem,
Anubhav‟s saw numerous documentaries and was inspired by them; child‟s mind is like
sponges they absorb everything going around them5. In the same manner, Anubhav absorbed
all that was spoken about him, including what his mother said and the contents of the
documentaries he watched.
3. Referring to, Indian Contract Act, A person below the age of 18 years has no capacity to
enter into a contract6. If we refer to Sec. 4(1) of Apprentices Act 19617, it states that: if a
person is a minor, his guardian has entered into a contract of apprenticeship with the
employer.
4. Therefore, we can understand that a minor cannot enter into a contract because of his lack of
contractual capacity. On behalf of minor his guardian can enter into a contract; this is for the
best interest of the minor. A minor is not capable enough and have an understanding for
making decisions upon his own welfare, particularly those that are so intricate and upon
which his life depends. These laws are in place to protect minors from making decisions that
may not be in their best interest.
UNDER INTERNATIONAL LAW
5. Art. 1 of UNCRC 1989, „a child, means every human being below the age of eighteen years
unless, under the law applicable to the child, majority is attainted either8‟.
6. The United Nations has proclaimed that childhood is entitled to special care and assistance9.
7. In the UK, children under the age of 16 cannot be treated without parental consent, unless
they prove to be mature according to the Gillick competence10 i.e., “the legal competence to
5
MARIA MONTESSORI ,The Montessori Method: Scientific Pedagogy as Applied to Child Education in "The
Children's Houses" with Additions and Revisions .
6
Indian Contract Act ,1872, Sec. 11, No. 9 , Acts of Parliament , 1872(India).
7
The Apprentices Act, 1961 , Sec.4(1),No.52 , Acts of Parliament , 1961(India).
8
United Nation Convention On The Rights Of The Children , 1989.
9
Universal Declaration of Human Rights, 1948.
10
Gillick vs. West Norfolk Wisbech Area Health Authority: = 1986 AC 112: 1985(3) All ER 402 (HL).

consent to medical examination and treatment if they had sufficient maturity and intelligence
to understand the nature and implications of that treatment”. The child has a right to give
consent but if they are mature enough and have understanding. But, in another case Lord
Donaldson have stated that: A „Gillick Competent‟ child or one over the age of 16 will have
power to consent but this will be concurrent with that of a parent or guardian11. The child of
tender years who rely on a person with parental responsibility for consent12. The children can
determine about their welfare, but final decision is given by the guardian.
8. The guardian makes the ultimate decision since an 11-year-old minor is not old enough to
make decisions for himself and it is even harder to make decisions for such complex issues as
gender identity. The child needs special protection and care, according to the laws. As a
result, there as several rules and provisions for children according to their age groups, for
instance the IPC. A minor‟s intellect is not mature enough to make important choices, such
as voting or signing a contract. Therefore, a child is not capable enough to make a decision
which is so complex and life changing step.
1.2 REGULATION OF PROTECTION OF CHILD UNDER CONSTITUTION OF INDIA
Rights Guaranteed Under Article 14

9. Article 14: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India13. Society has a different class and people,
and nature also differs in every society. Hence, the varying needs of the classes of people
require different treatments. Therefore, many laws must be applied based on reasonable
classification to maintain equality without any discrimination. Art. 14 is based on reasonable
classification14. Under this concept, the principle of equality means that the same law will not
apply to everyone, but it should apply to class of people. The doctrine of reasonable
classification also known as the 'Nexus test' or 'Doctrine of Nexus' thus acts as the exception
11
Re (A minor)(Wardship: Medical Treatment): 1991(4) All ER 177 (LAW COMMISSION OF INDIA 196TH
REPORT - Chapter IV).
12
Principles of medical law Authors: Judith M. Laing (Editor), Jean V. McHale (Editor), Ian Kennedy (Editor),
Andrew Grubb (Editor), 4th Edition ,Oxford University Press, Oxford, United Kingdom, 2017
13
INDIA CONST. art..14.
14
Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
to Article 1415. It allows for distinction to exist between different classes of people, subject to
certain conditions. There are two main conditions that are to be kept in mind when
considering permissible classification: firstly, 'intelligible differentia' and secondly, 'nexus
with an object sought to be achieved16. A child of tender age 11 year, a minor does not have a
capacity of understanding complex issues like gender identity, they may get influenced and
therefore, they are not able to take a decision upon his own welfare. Under Article 14, the
right to equality is not stated for a child of tender age because of the exception of intelligible
differentia because a child is not able to take a decision upon his own when such decision
relates to complex issue of gender identity. W.r.t. Sec. 11 of Indian Contract Act, a minor
does not have the capacity to enter into a contract17. This requirement provided by Section
11 classifies persons into two categories, i.e., adults and minors. The basis of the
classification is age. Thus, for the law to not be violative of Art. 14 it has to have a
permissible classification based on age which in this case is present as age has a relation to
the object of the legislation, i.e., capacity to enter into a contract18.
Rights Guaranteed Under Article 19

10. Article 19 (2) states about reasonable restrictions on the exercise of the right conferred by
Article 19(1)19. Morality is one of those reasonable restrictions. Morality can indeed serve as
a restriction or guideline for actions that are considered in the best interest of a child. The
best interest of the child or the welfare principle is embodied in section 13 of the Hindu
Marriage and Guardianship Act20. Section 1721of the Guardians and Wards Act states that
the court shall be guided by what appears in the circumstances to be for the welfare of the
minor. Sec. 15(2)22 states that facts should be taken into account in determining the welfare
of the minor. In order to prevent children from making wrong decisions on their own, it is
morally right for society to protect children‟s interest or their welfare. An 11-year-old child is
15
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75.
16
V.N Shukla, Constitution of India (Eastern Book Company,11th Edn)
17
18
V.N Shukla, Constitution of India (Eastern Book Company,11th Edn).
19
INDIA CONST. art.19.
20
Hindu Minority and Guardianship Act, 1956, Sec. 13, No.32, Acts of Parliament, 1956(India).
21
The Guardians and Wards Act, 1890 , Sec.17, No.8,Acts of Parliament , 1890(India).
22
The Guardians and Wards Act, 1890 , Sec.15(2), No.8,Acts of Parliament , 1890(India).
still too young to have completed his overall development or have enough comprehension to
be able to make his own decisions regarding complex issues like gender identification. It is
must to analyze the welfare of the child from all perspectives and take a decision that ensures
the child's overall development23. Morality serves as a framework for evaluating and guiding
actions that impact children, ensuring that their best interest is considered and protected.
Right Guaranteed Under Article 21
11. Art. 21 states that24: No person shall be deprived of his life or personal liberty except
according to a procedure established by law25. The person has their right to life and personal
liberty guaranteed under Art. 21 but the expression “procedure established by law” in the
context of deprivation of life and liberty under Art. 2126. While the Constitution recognizes
the importance of individual autonomy and decision-making, it also allows for certain
restrictions on these rights under the "procedure established by law" principle. Procedure
established by law‟ must mean procedure established by law made by the State which, as
defined, includes Parliament and the Legislatures of the States27. If we refer to the issue that,
whether a child of tender age of 11 years can take a decision upon his own welfare. In the
case of child‟s decision making, there are various laws and regulation in place to ensure their
welfare and protection. Sec. 11 of Indian Contract Act states that: Every person is competent
to contract who is of the age of majority28”, every person attain the age of majority on his
completing the age of 18 years and not before29. Minors on the other hand are generally
considered incompetent to contract. This implies that minors, including children, may not
have the legal capacity to provide informed consent for medical procedures. As per Clause
7.16 of the MCI Code of Ethics, informed consent for medical treatment should be obtained
23
Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2010) 10 SCC 314.
24
INDIA CONST. Art.21.
25
Maneka Gandhi v. Union of India 1978 1 SCC 248.
26
supra note 25.
27
A.K. Gopalan v. State of Madras (1950) SCC 228 : 1950 SCR 88.
28
29
Indian Majority Act,1875, Sec. 3 , No.9 , Acts of Parliament , 1875(India).
from a patient or their legally authorized representative. In the case of minors, the consent of
a parent or guardian is typically required30.
12. The Sec. 4 (b) of HMGA states that: „guardian‟ means a person‟s having the care of the
person of a minor of his property or of both his person and property31. A minor is not able to
look after his property and to take his care, therefore the minor has a guardian to look after
him and his property.
13. Sec. 7 of the Guardians and Wards Act, 1890 provides the power of the Court to pass an
order for guardianship. This section states that the court can appoint a guardian for the
welfare of minors32.
14. In matters related to education, the Right to Education (RTE) Act, 2009, guarantees free and
compulsory education to children between the ages of 6 and 14 33. While the law emphasizes
the importance of parental involvement in a child's education, it does not explicitly address
decision-making authority. However, practical considerations such as admission procedures,
fee payment, and selection of academic streams often involve parental or guardian
involvement. The parents have a fundamental duty to provide opportunity for education to
their child between the age of 6 to 1434.
15. India is a signatory to the CRC, an international treaty that sets out the civil, political,
economic, social, and cultural rights of children. The CRC emphasizes the best interests of
the child as a primary consideration in decision-making, recognizing that children's level of
maturity and understanding differs from that of adults35.
16. These are some of the procedure established by law, acknowledge the difference between the
child and the adults and recognize the need for certain restriction or regulations to safeguard
the best interest and welfare of child.
17. The child the tender age of 11 year is not able to take decision for their welfare due to the
restriction imposed on them as regulation of protection of child under Art. 14, Art.19 and
Art.21 of Indian Constitution.
30
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (Published in Part III,
Section 4 of the Gazette of India, dated 6th April, 2002).
31
Hindu Minority and Guardianship Act, 1956, Sec. 4(b) , No.32, Acts of Parliament, 1956(India).
32
The Guardian and Wards Act , 1890 , Sec.7 , No.8 , Acts of Parliament,1890(India).
33
Right to Education Act , 2009 , No.35, Acts of Parliament , 2009 (India).
34
INDIA CONST. Art. 51 (A) , provision 11 added by the 86 th Constitutional Amendment Act, (2002).
35
Convention on the Rights of the Child ADOPTED 20 November 1989 BY General Assembly resolution 44/25.
Therefore, a child of tender age of 11 year is not capable enough to take a decision upon
his own welfare related to the complex issue of gender identity due to their immaturity,
lack of understanding and the legal framework in place to safeguard their best
interests. It highlights the need for the parental or guardian involvement and the
importance of protecting children’s welfare through legal regulation.
ISSUE 2
WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING

ANUBHAV FOR HIS GENDER REASSIGNMENT SURGERY WITHOUT
CONSENT OF MR. SANJAY AMOUNT TO CRUELTY AND ACTING AGAINST
WELFARE OF CHILD?
It is humbly submitted before the Hon‟ble Court that the actions of Mrs. Divya Seth
supporting and taking Anubhav for his gender reassignment surgery without consent of Mr.
Sanjay amounts to cruelty and acting against welfare of child.
2.1 DEFINITION OF CRUELTY IN DIFFERENT STATUTES

18. Cruelty is defined in the Black's Law Dictionary as the intentional and malicious infliction
of physical suffering upon living creatures particularly human beings or, as applied to the
latter, the wanton, malicious and unnecessary infliction of pain upon the body or the feeling
and emotions.
19. The expression "cruelty" has not been defined in the Hindu Marriage Act, 1955. Cruelty for
the purpose of Section 13(1)(-a) is to be taken as a behavior by one spouse towards the other,
which causes a reasonable apprehension in the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with the other. Cruelty can be physical or
mental.36
36
Ramchander v. Ananta, (2015) 11 SCC 539.
MEANING OF MENTAL CRUELTY

20. Mental cruelty has not been defined or mentioned clearly under any law. It is entirely
subjective and depends totally upon the person, time, the facts and circumstances of the
case.37
21. The Supreme Court in Dr. N. G. Dastane v. Mrs. S. Dastane38, has held that the Court has to
see what the probabilities are in a case, and legal cruelty has to be found out, not merely as a
matter of fact but as the effect on the mind of the complainant spouse because of the acts or
omissions of the other. Mental cruelty is a state of mind and feeling with one of the spouses
due to the behavior or behavioral pattern of the other, and inferences can be drawn from the
attending facts and circumstances taken cumulatively. In the present case, Mrs. Seth actions
included taking Anubhav to have gender reassignment surgery against Mr. Sanjay's consent.
Mrs. Seth's action amounts to mental abuse and goes against Mr. Sanjay's desire to forego
gender reassignment surgery. Because he was worried about his son's welfare and was a
concerned father, Mr. Sanjay decided against gender reassignment surgery when the boy was
so young. From the kind of attitude, conduct, and treatment discussed in the preceding
paragraph, it can readily be inferred that the appellant has every reason to believe that it is
not healthy for him or for his child's welfare.
22. In Naveen Kohli v. Neelu Kohli39, a three-judge bench of this court felt that the concept of
legal cruelty has changed according to the advancement of social concepts and standards of
living. Continuous ill-treatment, cessation of marital intercourse, studied neglect,
indifference on the part of the spouse, and allegations of unchastity are all factors that lead to
mental or legal cruelty. While doing so, this Court affirmed that a set of facts stigmatized as
cruelty in one case may not be so in another, as cruelty largely depends on the kind of
lifestyle the parties are accustomed to or their social and economic conditions. Similarly,
intention, it was observed, was immaterial, as there can be cruelty even through unintentional
conduct. Moreover, mental cruelty is difficult to establish by direct evidence and must be
37
Anil Malhotra & Ranjit Malhotra, Marriage and Divorce - Complete Constitutional Justice, 2015 INT'l Surv.
FAM. L. 121 (2015).
38
N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326.
39
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
deciphered by attending to the facts and circumstances in which the two partners in
matrimony have been living.
23. Relying on the definition of cruelty in matrimonial relationships in Halsbury's Laws of
England 40, which must be reproduced here:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be
considered, and that rule is of special value when the cruelty consists not of violent acts but
of injurious reproaches, complaints, accusations, or taunts. Whether one spouse has been
guilty of cruelty to the other is essentially a question of fact, and previously decided cases
have little, if any, value. The court should bear in mind the physical and mental condition of
the parties as well as their social status and should consider the impact of the personality
and conduct of one spouse on the mind of the other, weighing all incidents and quarrels
between the spouses from that point of view; further, the conduct alleged must be examined
in the light of the complainant's capacity for endurance and the extent to which that capacity
is known to the other spouse. Malevolent intention is not essential to cruelty, but it is an
important element where it exists."
24. Referring to the above context, in our present case, Mr. Sanjay, being the father of Anubhav,
was concerned about him after he came to know about his desires to play with girls‟ toys and
be in the company of girls rather than boys. Knowing the same, Mrs. Seth, without taking
any cognizance of the conclusion of the psychologist, decided to undergo gender change
surgery and also rebuked Mr. Sanjay as homophobic when he told her about gender
dysphoria. Being a concerned father, Mr. Sanjay expressed his concern regarding Anubhav to
Mrs. Seth, saying that he was just confused about his identity and that as he grows up, he
might get out of this confusion and if not then surely, he will become mature enough to take
such big decisions about his own life.41 Ignoring him and his concern, Mrs. Seth took
Anubhav to Delhi for the gender reassignment surgery. Mrs. Seth's actions therefore had a
negative impact on Mr. Sanjay‟s mind and caused mental cruelty.
Jurisprudential aspect of Cruelty
40
Halsbury's Laws of England Vol. 13, 4th Edn, Para. 1269, Pg. 602.
41
Moot Proposition Para 12.
25. Impact Theory: In this theory, any act which has impacted one of the spouses in any manner
that is causing mental injury to him or her, even though the said spouse did not mean to cause
such injury, he or she would still be liable for cruelty as the intention of causing such injury
is immaterial. If there exists any mental injury, caused by any of the spouses, it is a good
ground for cruelty.42
26. In our present case, Mrs. Seth made the sole decision to have Anubhav undergo gender
reassignment surgery. She rejected Mr. Sanjay‟s suggestion for a visit to psychologist, and
afterwards, when Mr. Sanjay told her about his and Anubhav‟s visit to a Psychologist and
Anubhav‟s diagnosis of gender dysphoria and its treatment, to which she angrily rebuked on
him for his actions, calling him a homophobic. In addition, without knowing the rationale for
this change in behavior, Anubhav's mother gave her consent for him to undergo gender
reassignment surgery when he decided to change his sex after 11 years of being born
and after being persuaded by watching documentaries It is additionally stated that the
husband had tried to make reparations but the wife had taken the decision not to come back.
27. Yet another facet of mental cruelty after leaving her matrimonial home on the part of the
respondent canvassed by the learned counsel for the petitioner is regarding the parental
alienation. It is humbly pleaded that the respondent intentionally alienated the child from the
petitioner depriving his parental right to be loved by the child and taking decision for the best
interest of child. It amounts to nothing but mental cruelty.
2.2 PARENTAL CONSENT
28. Children who are legally too young to give consent to treatment must still be treated as
individuals whose rights as members of society are not solely dependent on the legal
definition of the day.
29. Under the Sec.6 and Sec. 8 of the Hindu Minority and Guardianship Act, 1956-
Sec. 6: Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in
respect of the minor's person as well as in respect of the minor’s property (excluding his or
her undivided interest in joint family property), are— (a) in the case of a boy or an
42
Mahapatra, M.. Cauldron of Defining" Cruelty" in Indian Family Laws. Supremo Amicus, 28, p.322, (2022).
unmarried girl—the father, and after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily be with the mother;
Sec.8: Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do all acts which are necessary or reasonable and
proper for the benefit of the minor or for the realization, protection or benefit of the minor's
estate; but the guardian can in no case bind the minor by a personal covenant.
30. After the case of Githa Hariharan v. Reserve Bank of India43, for the first time that a natural
guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of
and available for taking care of the child and is deeply interested in the welfare of the child.
31. Hence, providing for a guardianship that sees the mother and father as equal could be one
way of reforming the provision, thereby best interests/welfare of the child being the one and
only guiding factor in determining the guardianship of the minor. For the same, it is
necessary that the law recognizes both mother and father as deemed/presumed guardians
jointly as well as severally. This „joint as well as several‟ clause would provide a complete
responsibility on the part of parents, where the best interests of the child are not put on hold
for the lack of availability of either parent, for any reason whatsoever. Further, it would see
both the parents as responsible to the best interests of the child in their individual capacity as
well as jointly, reasonably leaving the choice on the parents, while taking decisions regarding
the child. Moreover, in case of dispute between the parents any such act may be challenged
by the other party in the court, leaving it upon the court to determine the best interest of the
child in that specific case rather than presuming that the best interest of the child can solely
be protected and promoted by the father.44
32. In our present case, being a natural guardian Mr. Sanjay is equally responsible for the best
interest of his child. Therefore, his acts after knowing entire background by Anubhav, he
took him to one of the famous Psychologists and after thorough examination done by the
psychologist , the conclusion was that Anubhav was suffering from gender dysphoria
whereas Mrs. Seth without doing any prior examination of Anubhav, took him directly for
43
Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
44
Guardianship of Hindu Minor : A Critique of the Law, 63 JILI , (2021) 172.
undergoing gender reassignment surgery and surgery was completed. Actions of Mr. Sanjay
show his concern towards the welfare and best interest of his child. Thus, being biological
father and natural guardian of Anubhav, Mr. Sanjay have right to give consent and take
decisions for the welfare of his child.
2.3 WELFARE OF THE CHILD IS PARAMOUNT

33. When Mr. Sanjay learned the entire background from Anubhav, he became concerned and
even took Anubhav to one of India's top psychologists, Dr. Aditya Shrivastava. After
examining Anubhav, the doctor determined that he had gender dysphoria, which can be
treated if it is caught early on and involves hormone therapy, psychotherapy, and other
measures. He disagreed with Anubhav's decision to have a sex change operation as well.
34. Furthermore, It is said by Dr. Sherer (Ilana Sherer, M.D., pediatrician with Sutter‟s Palo Alto
Medical Foundation), that most gender creative or gender non-conforming children are
comfortable with the sex (male or female) they were assigned at birth, they simply don‟t
conform to the stereotypes that the people around them hold for that sex.45
35. Arguendo, Mr. Seth is also attempting to convey that Anubhav is a young child who may be
uncertain about his gender identification at the moment and that, as he matures, he will
become clearer about it.
36. Reports based on the opinion of experts which shows the cons of the Gender Reassignment
Surgery and its consequences-
37. Dr. Paul McHugh, former chairperson of the Department of Psychiatry at Johns Hopkins
Hospital, has written that,
The idea that one's sex is fluid and a matter open to choice runs unquestioned through our
culture and is reflected everywhere in the media, the theater, the classroom, and in many
medical clinics. It has taken on cult-like features: its own special lingo, Internet chat rooms
providing slick answers to new recruits, and clubs for easy access to dresses and styles
45
Vitals.sutterhealth.org ,https://vitals.sutterhealth.org/tomboy-or-transgender-tips-on-gender-for-todays-parent/
,2022.
supporting the sex change. It is doing much damage to families, adolescents, and children
and should be confronted as an opinion without biological foundation wherever it emerges46.
38. SRS(Sex Reassignment Surgery) is a “permanent,” effectively unchangeable, and often

unsatisfying surgical attempt to change what may be only a temporary (i.e.,
psychotherapeutically changeable) psychological/psychiatric condition.47
39. Dr. McHugh has also written that transsexual attractions are often fluid and can change.
“When children who reported transsexual feelings were tracked without medical or surgical
treatment at both Vanderbilt University and London's Portman Clinic, 70 to 80 percent of
them spontaneously lost those feelings”.48
40. As evidenced by the report's statistics, gender reassignment surgery has a negative impact. In
his child's best interests, In order to express his concern for his son, he also told his wife that
the boy is too young to make such a decision and that it's possible that he's simply confused
about who he is and would eventually grow out of this misunderstanding. If not, he will
undoubtedly grow up and be capable of making such significant choices for himself.
The actions of Mrs. Seth amounts to cruelty and against welfare of Anubhav.
Therefore, it is humbly pleaded before the Hon’ble Court that the best interest of the
child should be considered.
46
McHugh Paul, Transgenderism: A pathogenic meme. Public Discourse.
(2015), http://www.thepublicdiscourse.com/2015/06/15145.
47 Fitzgibbons, R.P. , The psychopathology of “sex reassignment” surgery: Assessing its medical, psychological,
and ethical appropriateness. The National Catholic Bioethics Quarterly, 9(1), pp.97-125,
(2009),https://lc.org/PDFs/Attachments2PRsLAs/2018/061118SexReasssignmentSurgery.pdf
48
McHugh Paul, Transgender surgery isn't the solution ,The Wall Street Journal.
(2014). http://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120.

ISSUE 3
WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS

DECISION TO UNDERGO GENDER REASSIGNMENT SURGERY CAN BE
TERMED AS ACTING AGAINST THE WELFARE OF CHILD?
41. It is humbly submitted before the Hon‟ble Supreme Court of India that actions of Mr.
Sanjay not supporting Anubhav in his decision to undergo gender reassignment surgery can
be termed as acting for the welfare of the child. One of the most common justifications
given for getting access to gender affirmative healthcare services is that it is „medically
necessary‟.49
42. It was with the establishment of Harry Benjamin International Gender Dysphoria
Association („HBIGDA‟) in 197950 that the idea of the medical necessity to transition was
first recognised.51
43. HBIGDA established the transsexual Standards of Care („SOC‟) which laid down the
criteria for diagnosis, management and surgery of transgender. HBIGDA is now known as
World Professional Association for Transgender Health („WPATH‟). WPATH Guidelines
deals with the treatment of gender dysphoria, which refers to distress or discomfort caused
by the discrepancy between an individual's gender identity and sex assigned at birth.52 Many
transgender individuals describe this phenomenon as feeling “trapped” in the wrong body.53
44. They experience discomfort with their assigned gender and often adopt the dress and
mannerisms of the gender they wish to belong to. The incongruence in the gender they are
assigned at birth and the one with which they identify can cause mental distress too. At
49
Seth A. Jacobs, The Determination of Medical Necessity: Medicaid Funding for Sex-Reassignment Surgery, 31
Case W. Rsrv. L. Rev. 179 (1980) , https://scholarlycommons.law.case.edu/caselrev/vol31/iss1/7.
50
HARRY BENJAMIN INTERNATional Gender Dysphoria Association
51
Gupta, R., & Murarka, A. (2009). Treating transsexuals in India: History, prerequisites for surgery and legal
issues. Indian journal of plastic surgery : official publication of the Association of Plastic Surgeons of India, (2009),
https://doi.org/10.4103/0970-0358.59287.
52
HARRY BENJAMIN INTERNATIONAL Gender DYSPHORIA ASSOCIATION
53
supra note 49.
extreme levels, the distress caused by gender dysphoria meets criteria of classified mental
disorder. Gender dysphoria has been recognized as a mental disorder in the Diagnostic and
Statistical Manual of Mental Disorders.54
45. Transsexualism has also been recognized in the ICD Classification of Mental and
Behavioral Disorders as endorsed by the 43rd World Health Assembly in 1990. Transsexual
individuals are not inherently disordered.55 However, if they are suffering from clinical
gender dysphoria, then there are several treatment options available for the same. This
includes hormone therapy, SRS and psychotherapy.
46. This present issue will be dealt under two contentions that will be satisfying the Hon‟ble
Supreme Court under two contentions-
3.1 MR. SETH DECISION OF GENDER REASSIGNMENT FOR THE HIS CHILD
WELFARE
Child welfare vindicates more weightage
47. It is humbly submitted before the Hon‟ble Supreme court of India that Mr. Seth is working
for the welfare of the child for his own son Anubhav and child welfare he just wants to give
some time to his son to re-think and re-evaluate his decision of being gay.
48. Child welfare practice and decision making center around service plans, but few recent
studies have focused specifically on service plans and their use in routine child welfare
settings. This qualitative study involving interviews, case record reviews, and court
observations illuminates.
Anubhav at his tender age

49. It is humbly submitted before the Hon‟ble SC of India that Anubhav is incapable of taking
his own decision as he is eleven years old which comes under Minor according to Indian
Majority Act it states that every person domiciled in India shall attain the age of majority on
his completing the age of eighteen years and not before. In computing the age of any person,
the day on which he was born is to be included as a whole day and he shall be deemed to
54
Wynne Parry, Gender Dysphoria: DSM-5 Reflects Shift In Perspective On Gender Identity.
55
Pam Belluck, W.H.O. Weighs Dropping Transgender Identity from List of Mental Disorders .
have attained majority at the beginning of the eighteenth anniversary of that day.56 The
57
Punjab and Haryana High Court ruled in Preeti v State of Haryana that children attain
psychological and physiological maturity much prior to the age of majority. The age must
be revised accordingly. It raised the pertinent question of the legal age of the majority and
whether it is in line with modern society and its norms. The age of majority is when a minor
is considered an adult for all legal purposes.
50. When a minor comes to the age of majority, he or she is considered responsible for the
consequences of all his or her actions and loses any immunity that he or she had as a minor.
The majority‟s age for a minor is determined by when the minor typically achieve mental
and physical maturity. However, this depends on current societal values, various
socioeconomic factors, and, most importantly, what society expects from its minors.
Historically, the age of the majority was not always 18 years; but instead varied depending
on the group and society at the time. Parent and caseworker perceptions about the meaning
of service plans and service plan compliance, and about influences on compliance. Parents
and caseworkers similarly perceive service plans as directives and service plan compliance
as parental task completion and cooperation.
51. But whereas caseworkers perceive a motivation to parent as the primary influence on
service plan compliance, parents perceive multiple influences. Findings contribute to
ongoing work to develop theories that can explain client service participation and its
connection to positive child welfare outcomes. Mr. Seth concerned about his child that he
might get influenced and the LGBTQ+ is on its trend he saw so many documentaries related
to LGBTQ+ he just want to reassure that his child in correct direction and he is not getting
influenced.
3.2 GENDER REASSIGNMENT SURGERY CANNOT BE TERMED AGAINST

THE WELFARE OF CHILD.
52. Gender dysphoria is defined by severe or persistent distress associated with an incongruence
between one‟s gender identity and biological sex. It is estimated that 1.4 million Americans
56
THE MAJORITY ACT, 1875 , Sec 3. and Sec. 4, No. 9 , Acts of Parliament , 1875 (India).
57
Preeti v. State of Haryana, 2021 SCC OnLine P&H 1993.
and 25 million people worldwide identify as transgender and that 0.6% of Americans
experience gender dysphoria58.The pathophysiology of gender dysphoria is multifactorial
and incompletely understood. Genetics, androgen exposure, neuroanatomy, brain
connectivity, history of trauma, parents with psychological disorders, and being raised by
less than two parents are associated with gender dysphoria.
53. Gender dysphoria most frequently presents in early teenage years but can present earlier or
later. Anxiety and depression are the two most common comorbid diagnosis and may be the
59
reason for presentation to medical care. Diagnosis is established through history and or
validated questionnaires. Treatment includes psychosocial therapy, pharmacotherapy for
underlying depression and/or anxiety, hormonal therapy, non-genital and/or genital
feminization or masculinization operations.60 The frequency and severity of treatment
related morbidity increases progressively as treatments go from conservative to more
invasive. Gender dysphoria and its treatment is individualized and not completely
understood.61 Gender dysphoria is a serious condition in which a child's subjectively felt
identity and gender are not congruent with her or his biological sex, causing clinically
significant distress or impairment in social functioning or other important areas of
functioning.62 Over the past 10 years, the Family Court of Australia has received an
increasing number of applications seeking authorization for the commencement of hormone
therapy to treat children diagnosed with gender dysphoria63.
54. Treatment of children with gender dysphoria is given in two stages. Stage 1 treatment
involves the provision of puberty blocking medication, and stage 2 comprises cross-sex
hormone treatment.64 Until very recently, courts considered both stages of treatment
together and regarded them at law as a form of special medical procedure, which can only be
lawfully performed with court approval. In a significant recent development, courts have
58
Re Alex (2004) 31 Fam LR 503.
59
Re Brodie (Special Medical Procedure) [2008] FamCA 334.
60
Re Bernadette [2010] FamCA 94.
61
Re O (Special Medical Procedure) [2010] FamCA 1153.
62
Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948.
63
Re Rosie (Special Medical Procedure) [2011] FamCA 63.
64
Re Jodie [2013] FamCA 62.
drawn a distinction between the two stages of treatment, permitting parents to consent to
stage 1 treatment. In addition, it has been held that a child who is determined by a court to
be Gillick competent can consent to stage 2 treatments. A Gillick-competent child is one
who is found to possess sufficient understanding and intelligence to enable her or him to
understand fully what is proposed.65 Medical practitioners working in this field require an
understanding of these principles, so that they know when and why they must obtain court
approval before conducting treatment
Non-Operative Treatment: Psychosocial Therapy
55. Of the many recommended treatments for gender dysphoria, the first non-operative option is
psychosocial therapy and counseling. The overall goal of psychosocial therapy is to improve
the patient‟s quality of life through open and consistent communication.66 There are
numerous aspects to this, but the objective is to support patients as they begin to implement
their gender identity to their loved ones and society. Mental health professionals provide
support by answering questions and discussing body image regarding the society-based
gender normative. In addition, these professionals guide patients with coming out to friends,
family, and colleagues.67
56. The true benefit to therapy is that it is ongoing, rather than a single experience; patients can
utilize this support lifelong, which is a key component to maintaining positive outcomes.
For those who may not have access to a mental health professional, numerous support
systems exist, including peer groups and internet-based support groups.68 The WPATH
recognizes that psychotherapy successfully helps individuals with their gender identity
without needing hormone based medical therapy or gender affirmation surgery.
57. In recent decades, changes in the acceptance of variations in gender identity have facilitated
more individuals openly expressing themselves as transgender. This is evident by the increasing
65
supra note 10.
66
Coleman E, Bockting W, Botzer M, et al. Standards of Care for the Health of Transsexual, Transgender, and
Gender-Nonconforming People , Version 7, International Journal of Transgenderism , (2012).
67
Hadj-Moussa M, Ohl DA, Kuzon WM Jr. , Evaluation and Treatment of Gender Dysphoria to Prepare for Gender
Confirmation Surgery. Sex Med Rev. (2018).
68
Wylie K, Knudson G, Khan SI, Bonierbale M, Watanyusakul S, Baral S , Serving transgender people: clinical care
considerations and service delivery models in transgender health , (2016).
number of people who identify as transgender over the past decade. There is also an increasing
body of evidence of a biological basis of gender identity. The rate of increase of prevalence of
transgender individuals has been highest among children and young adolescents. These patients
will often first present to their primary care providers (pediatricians in this case) with either
complaints of depression or anxiety from suffering with their identity crisis, or questions or
desire about gender transition treatment.
58. Treatment decreases suicidality among individuals with gender dysphoria and leads to improved
quality of life. Treatment options include psychosocial therapy, medical treatment for
underlying depression and/or anxiety, hormonal treatment, and more than a dozen possible
surgical procedures. More invasive treatments are associated with more severe adverse effects.
Gender identity research is increasing rapidly, but there are still gaps in knowledge. Also, there
is a need for large studies of long-term health outcomes of transgender individuals receiving
medical and/or surgical treatment for gender dysphoria. Overall, this review paper provides the
most up to date information regarding gender dysphoria and its treatments.
Therefore, Mr. Sanjay not supporting Anubhav in his decision to undergo gender
reassignment surgery can be termed as acting for the welfare of the child. As there are
many consequential problems that would arise and here Mr. Sanjay is trying to explore
and not really sure what Anubhav is thinking is correct or not.

PRAYER
Wherefore, in the light of the issues raised, arguments advanced, facts mentioned and authorities
cited, the counsel of the petitioner humbly prays and implores before the Hon‟ble Court to
adjudicate by issuing an appropriate writ and direction of order. It is further prayed that this
Hon‟ble court may be pleased to hold, adjudge, and declare that
1. The children of a tender age is cannot take decision upon his own welfare,
addressing gender identity issues.
2. Actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery with consent of Mr. Sanjay does amount to cruelty and
acting against welfare of child.
3. Actions of Mr. Sanjay not supporting Anubhav in his decision to undergo
gender reassignment surgery can be termed as acting for the welfare of child.
And / Or
Pass any other order, writ, or direction which it deems fit in the interest of
Justice, Equity, and Good Conscience.
The counsel humbly bound ever pray.
All of which is humbly submitted
S/d-
Counsel for the Petitioner

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SAMAR KUMAR BASU NATIONAL MOOT COURT COMPETITION-2023 DL-116

SAMAR KUMAR BASU NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION

MR. SANJAY BEHTA…………………………………………………… PETITIONER

MRS. DIVYA SETH……………………………………………………….RESPONDENT

PETITION INVOKED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

-MEMORIAL ON BEHALF OF THE PETITIONER-

1|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

LIST OF ABBREVIATIONS ....................................................................................................................... 4

2|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

3|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

S. No. ABBREVIATION MEANING

4|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

1. Ram Krishna Dalmia v. S.R. Tendolkar, 1959 SCR 279

5|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

25. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.

CONSTITUTION OF INDIA, 1950

JUVENILE JUSTICE ACT, 2015

HINDU MINORITY AND GUARDIANSHIP ACT,1956

THE GUARDIANS AND WARDS ACT,1890

HINDU MARRIAGE ACT , 1955

INDIAN CONTRACT ACT,1872

INDIAN PENAL CODE,1860

INDIAN EVIDENCE ACT, 1872

6|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

1. Mahapatra, M.. Cauldron of Defining" Cruelty" in Indian Family Laws. Supremo

2. McHugh Paul, Transgenderism: A pathogenic meme. Public Discourse. (2015).

3. Fitzgibbons, R.P. , The psychopathology of “sex reassignment” surgery: Assessing its

7. Coleman E, Bockting W, Botzer M, et al. Standards of Care for the Health of

8. Hadj-Moussa M, Ohl DA, Kuzon WM Jr. , Evaluation and Treatment of Gender

9. Wylie K, Knudson G, Khan SI, Bonierbale M, Watanyusakul S, Baral S , Serving

V.N Shukla, Constitution of India (Eastern Book Company,11th Edn)

United Nations Convention on the Right of Child, 1989

Universal Declaration of Human Rights (1948)

International Covenant of Civil and Political Rights, 1976

European Convention on Human Rights, 1953

8|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

136. Special leave to appeal by the SUPREME COURT:

9|Page -MEMORIAL FROM THE SIDE OF PETITIONER-

Dates and Events-

S.NO. DATE/ YEAR EVENTS

10 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

on the ground of Cruelty and sought custody and

11 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON

WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING

WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS

12 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

1. WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION

2. WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING

13 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

3. WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS

14 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON

1.1 THE POSITION OF THE CHILD IN VARIOUS PROVISIONS AND THEIR

16 | P a g e -MEMORIAL FROM THE SIDE OF PETITIONER-

1.2 REGULATION OF PROTECTION OF CHILD UNDER CONSTITUTION OF INDIA

Rights Guaranteed Under Article 14

Rights Guaranteed Under Article 19

Right Guaranteed Under Article 21