Team Code: NLC 137: Shivam Saraf 1 Virtual Moot Court Competition 2020 Nlc137

SHIVAM SARAF 1ST VIRTUAL MOOT COURT COMPETITION 2020 NLC137
TEAM CODE: NLC 137
SHIVAM SARAF MEMORIAL 1ST NATIONALVIRTUAL

MOOT COURT COMPETITION, 2020
MEMORANDUM OF SPECIAL LEAVE PETITION
(U/Art 136 OF INDICAN CONSTITUTION)

IN THE HON’BLE SUPREME COURT OF INDICA
(APPELLATE JURISDICTION)
IN THE MATTER OF
SPECIAL LEAVE PETITION NO. ____ OF 2020
Mr. RAKESH MEHTA ……….PETITIONER

V
Dr. ARJUN KUMAR …………RESPONDENT
MEMORANDUM ON BEHALF OF THE RESPONDENT
COUNSEL FOR THE RESPONDENT
0
TABLE OF CONTENTS
CONTENT P P
LIST OF ABBREVIATIONS 2 Abbreviations
INDEX OF AUTHORITIES 3 IndexofAuthorities
I. CASE LAWS 3 CaseLaws
II. FOREIGN CASE LAWS 8 FCaseLaws
III. LEGISLATIONS 8 Legislations
IV. INTERNATIONAL COVENANTS 8 ICovenants
V. JOURNALS 8 Journals
VI. COMMENTARIES 9 Commentaries
VII. WEBSITES 9 Websites
STATEMENT OF FACTS 10 Facts

ISSUES RAISED 12 IssuesRaised
SUMMARY OF ARGUMENTS 13 SummofArguments
ARGUMENTS ADVANCED 15 ArgumentsAdvanced
I. WHETHER THE SPECIAL LEAVE PETITION 15 Issue1
IS MAINATINABLE BEFORE THE SUPREME
COURT OF INDICA OR NOT?
II. WHETHER THE COURT CAN APPOINT A 17 Issue2
GUARDIAN IN THE PRESENCE OF A
NATURAL GUARDIAN OR NOT?
III. WHETHER ADOPTION BY VERBAL 21 Issue3
AGREEMENT AND THE SUBSEQUENT DEED
OF ADOPTION IS VALID OR NOT?
IV. WHETHER WELFARE OF THE CHILD IS THE 24 Issue4
ONLY FACTOR DETERMINING THE
CUSTODY OF THE CHILD?
PRAYER 29 Prayer
1
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
& And
¶ Paragraph Number
¶¶ Paragraph Numbers
AIR All India Reporter
Anr Another
Art. Article
Arts. Articles
CPC Code of Civil Procedure, 1908
Edn. Edition
Govt. Government
HAMA Hindu Adoptions and Maintenance Act, 1956
HC High Court
HMGA Hindu Minority and Guardianship Act, 1956
Hon’ble Honourable
No. Number
Ors. Others
PP. Page Numbers
SC Supreme Court
SCC Supreme Court Cases
Sch., Schedule
SCR Supreme Court Reports
Sec. Section
Secs. Sections
SLP Special Leave Petition
U/Art. Under Article
U/Sec. Under Section
v. Versus
Vol. Volume
2
INDEX OF AUTHORITIES
I. CASE LAW
S. No. CASE TITLE CITATION PP

1. A. K. Kraipak v. Union of India AIR 1970 SC 150. Passim
2. A.R. Antulay v.R.S. Nayak 1992 (1) SCC 279 Passim
3. Akhtari Bi v. State of M.P. 2001 (4) SCC 355. Passim
4. Anil Rai v. State of Bihar MANU/SCOR/68827/2019 Passim
5. Arathi Bandi Vs. Bandi 2013 (3) RCR (Civil) 968 Passim
Jagadrakshaka Rao
6. Arunachalam v. P.S.R. (1979) (2) SCC 297 Passim
Sadhanantham and Anr.
7. Ashok Samjibhai Dharod v. Neeta [II(2001) DMC 48 Bom] Passim
Ashok Dharod
8. Associated Cement Companies Ltd (1965) 2 SCR 366 Passim
v. P.N. Sharma
9. Athar Hussain Vs. Syed Siraj Ahmed AIR 2010 SC 1417 Passim
and Ors.,
10. Athar Hussain v. Syed Siraj Ahmed (2010) 2 SCC 654 Passim
11. Banwari Lal v. Trilok Chand, AIR 1980 SC 419 Passim

12. Barsay v. Bombay AIR 1961 SC 1762 Passim
13. C.C.E v. Standard Motor Product AIR1989 SC 1298 Passim
14. Chandrakala Menon and Ors. v. MANU/SC/0459/1993 Passim
Vipin Menon and Ors.,
15. Chethana Ramatheertha vs. Kumar ILR 2003 KAR 1205 Passim
V. Jahgirdar
16. Chettiar v. Chettiar AIR 1968 SC 915 Passim
17. Dale & Carrington Investment Ltd. (2005) 1 SCC 212. Passim
v. P.K. Prathapan
18. Delhi Development of Authority V. 1973 AIR 2609 Passim
3
Durga Chand
19. Dhanno v Tuhi Ram AIR 1996 P H 203 Passim
20. Dhanwanti Joshi Vs Madhav Und,; 1998(1) RCR (Civil) 190 Passim
21. Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137 Passim
22. Dr. (Mrs.) Veena Kapoor vs Shri AIR 1982 SC 792 Passim
Varinder Kumar Kapoor
23. Dr.V.Ravi Chandran Vs. Union of 2010 (1) SCC 174. Passim
India,
24. Durga Shankar Mehta v. Thakur AIR 1954 SC 520 Passim
Raghuraj Singh and Ors
25. Elizabeth Dinshaw Vs Arvind 1987 (1) SC 42 Passim
M.Dinshaw,
26. Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 Passim
27. Gaytri Bajaj Vs Jiten Bhalla AIR 2013 SC (Civil) 77 Passim

28. Githa Hariharan v Reserve Bank of AIR 1999 SC 1149 Passim
India
29. Hussainara Khatoon v. Home 1980 (1) SCC 81 Passim
Secretary, State of Bihar
30. Hussainara Khatoon v. Home 1980 (1) SCC 98 Passim
Secretary, State of Bihar
31. Jai Prakash Khadria v Shyam AIR 2000 SC 2172 Passim
Sunder Agarwalla
32. Janshed Hormusji Wadia v. Board (2004) 3 SCC 214. Passim
of Trustees, Port of Mumbai
33. Jitender Arora v. Sukriti Arora (2017) 3 SCC 726 Passim
34. Jose Da Costa and Anr. v. Bascora (1976) 2 SCC 917 Passim
Sadasiva Sinai Narcornim and Ors.
35. Jwala vs .Bachi Lal, AIR 1942 Cal 215, Passim
36. K.Ponnarasi versus P.Alagu Mu C.M.A.(MD)No.411 of Passim
2015
37. Kartar Singh v. State of Punjab 1994 (3) SCC 569; Passim
4
38. Kirtikumar Maheshankar Joshi v. (1992) 3 SCC. 573 (India) Passim

Pradipkumar Karunashanker Joshi
39. M. Ramachandran vs M.M. (2010 (3) MLJ 830 Passim
Chandrasekar
40. Madhavan Pillai v. Inez Rosario AIR 1971 Ker. 27 Passim
41. Madhusudan Das v Narayanibai 1983 SCR (1) 851 Passim
42. Mausami Moitra Ganguli v. Jayant (2008) 7 SCC 673 Passim

Ganguli
43. Mausami Moitra Ganguli Vs Jayant 2008 (4) RCR (Civil) 551 Passim
Ganguli (SC)
44. Mayank bhargava vs Jyoti 2015(2) PLR 15 (P&H) Passim
Bhargava
45. Mckee Vs Mckee 1951 AC 352 Passim
46. Meera Agarwalla Bansal v Shyam I (2002) DMC 593 Passim
Sunder Agarwalla
47. Mr Preetam A Eklaspur v. Smt WP.No.52377/2018 Passim
Vanishree [DD.08.01.2019]
48. Mrs.Shilpa Aggarwal Vs. Mr.Aviral 2010(1) RCR (Civil) 231; Passim
Mittal & Anr.
49. N Suriyakala v. A Mohan Doss & (2007) 9 SCC 196 Passim
ors.
50. N.V. Chowdary v Hindustan Steel AIR 1984 A.P. 110 Passim
Works Construction Ltd
51. Nagayasami v. Kochadai Naidu AIR 1969 Mad 329 Passim
52. Narpat Singh v. Jaipur AIR 2002 SC 2036. Passim

Development Authority
53. Nawab Mir Barkat Ali Khan v. AIR 1975 AP 187 Passim
Nawab Zulfekhar Jah Bahdur
54. Neelam Vs Mann Singh 2015 (2) RCR (Civil) 291 Passim
55. Nihal Singh & Ors v. State Of AIR 1965 SC 26 Passim
Punjab
56. Nil Ratan Kundu v. Abhijit Kundu, (2008)9 SCC 413. Passim
5
57. Oriental Insurance Co.Ltd v Lalitha II (2006) ACC 125 Passim

Sharma,
58. P.S.R. Sadhanantham v. (1980) 3 SCC 141 Passim
Arunachalam and Anr.
59. Panni Lal vs. Rajinder Singh and MANU/SC/0552/1993 Passim
Ors.
60. Pentakota Satyanarayana Vs. 2005 (5) CTC 207 Passim
Pentakota Seetharatnam,
61. Prabhati Mitra vs D.K. Mitra 25 (1984) DLT 186 Passim
62. Pritam Singh v. State, AIR 1950 SC 169 Passim
63. R.C. Sharma v. UOI 1976 (3) SCC 574. Passim
64. Raj Deo Sharma II v. State of Bihar 1999 (7) SCC 604 Passim
65. Raj Deo Sharma v. State of Bihar 1998 (7) SCC 507 Passim
66. Ram Das v Gandia Bai (1997) 2 L.W. 556 (S.C.) Passim
67. Rosy Jacob Vs. Jacob A. 1973 (1) S.C.C. 840 Passim
Chakramakkal
68. Ruchi Majoo Vs Sanjeev Majoo, 2011 (3) RCR Civil, 122, Passim
69. S.R.K. Murthy v. Narayana Das, AIR 1982 AP 384 Passim
70. Saihba Ali v. State of Maharashtra (2003) 7 SCC 250 Passim

71. Sandhya Alias Supriya Kulkarni & AIR 1998 Bom 228 Passim
Another v. Union Of India &
Another
72. Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14: 2000 Passim
SCC (Cri) 568
73. Sarita Sharma vs Sushil Sharma,; 2000(2) RCR (Civil) 367 Passim
74. Shakuntala Sonawane v. Narendra (2003 (2) HLRI Bombay Passim
Khaire (India)
75. Sir Chunilal Mehta and Sons. Ltd. v. AIR 1962 SC 1314 Passim
Century Spinning and
Manufacturing Co. Ltd
6
76. Smt. Surinder Kaur Sandhu Vs 1984 (3) SCC 698 Passim
Harbax Singh Sandhu,
77. State of Karnataka v. State of Tamil Civil Appeal No. 2453 of Passim
Nadu and Ors.
2007 decided on December
9, 2016.
78. Sumati Dayal v. CIT (1995) 214 ITR 801 Passim
79. Suresh Babu v. Madhu AIR 1984 (Mad.) 186 Passim
(India.)
80. Surya Vadanan Vs State of Tamil 2015 (2) SCC (Civil) 183 Passim
Nadu (SC)
81. Syed Saleemuddin v. Dr. Rukhsana, (2001) 5 SCC 247 Passim
82. Thirty Hoshie Dolikuka v Hoshim AIR 1982 SC 127 Passim
Shavaksha Dolikuka
83. Union Carbide Corporation and (1991) 4 SCC 584 Passim
Ors. v. Union of India and Ors.
84. Universal Packaging & Ors v CIT (2013) 352 ITR 398 (Bom). Passim
85. Vikram Vir Vohra Vs Shalini Bhalla AIR 2010 SC 1675 Passim
86. Vivek Singh v. Romani Singh (2017) 3 SCC 231 Passim
7
II. FOREIGN CASE LAWS
S. No. CASE TITLE CITATION PP

1. D'Alton v. D'Alton (1878) 4PD 87 Passim
2. Philip v. Philip (1872) 41 LJ P&M 89 Passim
3. re Curtis (1859) 28 LJ Ch 458 Passim
4. re Fynn (1848) 2 De & Sm 457 Passim
5. re Mc Grath 1893, 1 Ch. 143 Passim
6. re Newton [18961 1 Ch 740 Passim
III. LEGISLATIONS
S. No. TITLE OF LEGISLATION PP.
1. CONSTITUTION OF INDIA, 1950 Passim
2. CODE OF CIVIL PROCEDURE, 1908 Passim
3. GUARDIANS AND WARDS ACT, 1890 Passim
4. HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 Passim
5. HINDU MINORITY AND GUARDIANSHIP ACT, 1956 Passim
6. INDIAN REGISTRATION ACT, 1908 Passim
7. FAMILY COURTS ACT, 1984 Passim
IV. INTERNATIONAL COVENANTS
S. No. COVENANT PP.

1. UN CONVENTION ON RIGHTS OF CHILD Passim
V. JOURNALS
S. No. TITLE OF JOURNAL PP.
1. ALL INDIA REPORTER (AIR) Passim
2. SUPREME COURT CASES (SCC) Passim
8
VI. COMMENTARIES
S. No. AUTHOR TITLE EDITION PP.
1. Mulla Mulla Hindu Law 18th Edn. Passim
2. V.N. Shukla CONSTITUTION OF INDIA 13th Edn. Passim
VII. WEBSITES
S. No. TITLE OF JOURNAL PP.
1. www.scconline.com Passim
2. www.livelaw.in Passim
9
STATEMENT OF FACTS
[¶ 1.] Mrs. Anisha, the daughter of Mr. Rakesh Mehta marries Dr. Neeraj, the son of Dr.
Arjun Kumar, as per Hindu Rites in 2007. In 2008, couple was blessed with a son, Karan.
Although they belonged to a middle-class background, the family afforded all the comforts to
Karan. Dr. Arjun, the grandfather was a retired man, therefore enjoyed spending most of the
time with his grandson. Dr. Arjun used to take Karan to school all by himself and also used to
bring him back, took him for vacations and imbibed in him all the valuable morals and ethics.
Neeraj passed away in the year 2014.
[¶ 2.] After which Anisha shifted to her home along with her son, Karan. There Karan was
offered all the luxury as Mr. and Mrs. Mehta were quite well off. Eventually, she got married
to Mr. Rohan, on 29th November, 2016. Mr. Rohan already had two sons from his previous
marriage, therefore Anisha decided not take Karan along with her. She left her child with her
parents. Mr. and Mrs. Mehta stayed near their workplace and visited Karan on weekends.
Two caretakers were appointed for Karan, who were responsible for his well-being. The child
was also given expensive gadgets to play and pass his time with. Overall, the maternal
grandparents kept him in the lap of luxury and showered him with love whenever they
returned.
[¶ 3.] When Mr. and Mrs. Kumar came to know 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.
[¶ 4.] Aggrieved of this Mr. Kumar filed an application under section 7 of the Guardians and
Wards Act, 1890, for their appointment as guardians and custodian of the child in the Family
Court on 25th February, 2017. Mr. Kumar also filed a separate application before the Family
Court for injunction against Anisha restraining her from giving the child in adoption to
anyone including her parents. The Family court vide its order dated 26.2.2017 granted an ex-
parte order of injunction against Anisha as prayed for and issued notice to file objection by
26.3.2017 for show cause.
[¶ 5.] Mr. Mehta appeared before Family Court and filed objection stating that the child was
given to him in adoption by his daughter Anisha, verbally on 22.2.2017 and by a deed of
adoption, which was executed and registered on 27.2.2017. Mr. Mehta prayed for vacation of
the order of injunction by stating that Anisha had already given the child to him so there
10
arises no the question of restraining. Mr. Mehta further prayed for his appointment as
guardian of the child on the strength of the adoption deed.
[¶ 6.] Anisha also filed her objection separately by stating that she was the natural guardian
so the application for appointment of guardian was not maintainable. 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.
[¶ 7.] The Family court after hearing the matter, rejected the prayer of Mr. Mehta on the
ground that the matter of adoption was pending before the District Court. The Family Court
also rejected the prayer of Mr. Kumar on the ground that, in presence of natural guardian
court cannot appoint any guardian. Further, the Family Court allowed the prayer of Anisha on
the sole ground that she was the mother (natural guardian) of the child.
[¶ 8.] Aggrieved by the decision of the Family Court, Mr. Mehta and Dr. Arjun Kumar filed
their appeals in the High Court questioning the validity of the orders passed by Family Court.
After hearing both the parties, the High Court also rejected the appeals stating that there is no
error of law made by the Family Court in its orders.
[¶ 9.] Thereupon, Mr. Mehta filed a SLP before Supreme Court against the order of rejection
of appeal by High Court. Mr. Mehta in the Supreme Court claimed that once a guardian and
custodian is appointed by the natural guardian, no person had the right to question or cancel it
therefore he should be declared as the guardian and custodian of Karan in view of the
adoption deed. Dr. Arjun also filed a SLP in the Supreme Court against the order of the High
Court praying for the Guardianship and Custody of the Child.
11
ISSUES RAISED
ISSUE-I
WHETHER THE SPECIAL LEAVE PETITION IS MAINATINABLE BEFORE THE

SUPREME COURT OF INDICA OR NOT?
ISSUE-II
WHETHER THE COURT CAN APPOINT A GUARDIAN IN THE PRESENCE OF A

NATURAL GUARDIAN OR NOT?
ISSUE-III
WHETHER ADOPTION BY VERBAL AGREEMENT AND THE SUBSEQUENT DEED

OF ADOPTION IS VALID OR NOT?
ISSUE-IV
WHETHER WELFARE OF THE CHILD IS THE ONLY FACTOR DETERMINING THE

CUSTODY OF THE CHILD?
12
SUMMARY OF ARGUMENTS
[I] Whether the Special Leave Petition is maintainable before the Supreme Court or
not?
Yes. The Special Leave Petition filed by the petitioner, Mr. Kumar is maintainable U/Art.
136 of the Constitution of Indica. Art. 136 empowers the Supreme Court to grant in
discretion Special leave to appeal from any judgement, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of Indica.
The powers U/Art. 136 can be exercised against any kind of judgement or order which is
causing injustice to any party, and to serve the need, the power U/Art. 136 is unfettered. This
Special Leave Petition is maintainable as, firstly the petitioner has locus standi to approach
the Honourable SC [1.1], secondly the matter involves question of general public importance
involving a substantial question of law [1.2].
[II] Whether the court can appoint a guardian in the presence of a natural guardian?
Yes. The court has the authority to appoint a guardian even when the natural guardian is
present. Where the natural guardian has acted in a way that is unfit towards the well-being of
the minor child then the right over the crucial decisions regarding minor’s life can be taken
away from the capacity of the mother as the natural guardian of her child. The court has been
given the authority to remove a guardian U/Sec. 39 of the Guardians and Wards Act, 1890, if
it is proved that the person appointed has broken the trust by being negligent to the duties as a
guardian. Even when a guardian is appointed by the mother the court can cancel or reject the
appointment if it is proved that the appointment was not executed keeping in my mind the
interest of the minor [2.1]. The hearing and disposal of the suit filed in the District court
questioning the validity of the deed of adoption is crucial to the present case and it should be
taken up by the Hon’ble court on its own motion [2.2].
[III] Whether adoption by verbal agreement and the subsequent adoption deed is valid?
No. In this instant case, it is humbly submitted before this Hon’ble court that the matter of
custody is in accordance with the welfare of the child and not an exclusive right to the natural
guardian. It is further contended before this Hon’ble court that the evidence in proof of
adoption should be free suspicion of fraud and be consistent and probable as to give no
accasion for doubting it is truth. In this instant case, the deed is subjected to doubting its
13
genuineness. A verbal adoption cannot be held valid until and unless it is followed by a
contemporaneous deed [3.1]. The mere fact of the minor living with the maternal
grandparents cannot be taken as a ground for valid adoption. Only a contemporaneous deed
of adoption can be strong and cogent evidence. In this instant case, since the injunction
decree was passed prior to the registration, the deed has no effect and has a less evidentiary
value [3.2].
[IV] Whether welfare of the child is the only factor determining the custody of the
child?
Yes. Other courts in Indica have reiterated time and again that in the proceedings for custody
of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the
parties to the custody. The court went onto observe in its decree that – Welfare and interest of
the child is paramount. Also it is humbly submitted that, the orders relating to custody of
children are by the very nature not final but are interlocutory in nature and subject to
modification at any future time upon proof of change of circumstances requiring change of
custody but such change in custody must be proved to be in the paramount interest of the
child. The welfare of the child can override any other matter when it comes to cases of child
custody [4.1] and the financial stability of the guardians is not a deciding factor. [4.2]
14
ARGUMENTS ADVANCED
[I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE

THE SUPREME COURT?
[¶ 1.] It is humbly submitted before this Hon’ble Court that, the Special Leave Petition filed
by the respondent, Mr. Kumar is maintainable under Article 136 of the Constitution of India.
Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from
any judgement, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.1 It is humbly submitted that powers
under Article 136 can be exercised against any kind of judgement or order which is causing
injustice to any party, and to serve the need, the power under Article 136 is unfettered2.
[¶ 2.] This SLP is maintainable as, firstly the respondent has locus standi to approach the
Honourable SC, secondly the matter involves question of general public importance
involving a substantial question of law.
[1.1]Whether the respondent has locus standi to approach the honourable Supreme
Court?
[¶ 3.] It is humbly submitted before this Honourable SC that the appellant has locus standi to
approach the Honourable SC in the present case. Article 136 of the Constitution is couched in
the widest phraseology3. This Court's jurisdiction is limited only by its discretion4.It is
pertinent to note that the scope of Article 133 providing appeals to the SC in civil matters is
limited whereas Article 136 is very broad-based & confers discretion on the court to hear “in
any cause or matter”. 5 The plenitude of power under Article 136 of the Constitution has been
authoritatively stated by the Constitution Bench in Durga Shankar Mehta v. Thakur Raghuraj
Singh and Ors. and the exercise of the said power by the Court cannot be curtailed by the
1
Art. 136, Constitution of Indica, 1950.
2
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520; Associated Cement Companies
Ltd v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors.
(1976) 2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297; P.S.R. Sadhanantham
v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of India and Ors.
(1991) 4 SCC 584.
3
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.
4
Ibid
5
Pritam Singh v. State, AIR 1950 SC 169
15
original constitutional provision or by any statutory provision6. Therefore, civil appeals may
be brought to the SC under article 136 when these are not covered by Article 133.7
[1.2] Whether the matter involves substantial question of law and hence entitled to be
maintainable?
[¶ 4.] Where findings are entered without considering relevant materials and without
following proper legal procedure, the interference of the Supreme Court is called for 8. It is a
well-settled law that one of the basic principles of natural justice is that the authority
concerned must pass a speaking order so as to enable a party to know the reasons as to why
his application is being accepted or rejected. This ensures due application of mind to the facts
by the authority concerned. 9The expression "substantial question of law" is not defined in
any legislation. Nevertheless, it has acquired a definite connotation through various judicial
pronouncements. A Constitution Bench of the Apex Court, while explaining the import of the
said expression, observed that: “The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is not free from difficulty or calls for
discussion of alternative views.”10 It has been held by this Hon’ble Court that when a
question of law of general public importance arises, or a decision shocks the conscience of
the court, its jurisdiction can always be invoked. Article 136 is the residuary power of SC to
do justice where the court is satisfied that there is injustice.11 The principle is that this court
would never do injustice nor allow injustice being perpetrated for the sake of upholding
technicalities.12
6
AIR 1954 SC 520.
7
State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December 9,
2016; Barsay v. Bombay AIR 1961 SC 1762; Banwari Lal v. Trilok Chand, AIR 1980 SC 419; Digvijay Singh
v. Pratap Kumari, AIR 1970 SC 137; Chettiar v. Chettiar, AIR 1968 SC 915
8
Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
9
Universal Packaging & Ors v CIT (2013) 352 ITR 398 (Bom).
10
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
11
C.C.E v. Standard Motor Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC
196; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036, Sumati Dayal v. CIT, (1995) 214 ITR
801
12
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214.
16
[¶ 5.] In the case of Vasudeo Wshwanath Saraf- Vs- New Education Institute and Ors.13 the
court has by referring to its para 14 it is further pointed out that the cardinal principle of rule
of law which governs our policy makes it obligatory on the part of the Court to record
reasons for arriving at a conclusion to enable the litigants more particularly the aggrieved
party to know the reasons which weighed the mind of the Court in determining a particular
question whether it is a question of facts or question of law, which is imperative for the fair
and equitable administration of justice.
[¶ 6.] This respondent chose to approach the court via the proviso of the Guardians and
Wards Act, 1890 as the Hindu codified laws prescribe, “where no specific remedy is provided
under the Hindu Minority and Guardianship Act, 1956, Section 2 and Section 5(b) of the Act
makes the provisions of the Guardians and Wards Act applicable to such a case. Section 2
makes it clear that the Hindu Minority and Guardianship Act, 1956 is in addition to the
Guardians and Wards Act, 1890.”14
[¶ 7.] In the present case, the question of law involved in appeal is regarding the correctness
of the dismissal of petitions by this respondent by the lower courts, without proper
consideration of all the relevant fact. The questions raised by the Appellants involve
substantial questions of law, as would be shown in the subsequent submissions, and the same
requires to be adjudicated by this Hon’ble Court. It is humbly submitted that substantial and
grave injustice has been done to the rights of the respondent and that the case in question
presents features of sufficient gravity to warrant a review of the decision appealed against.
[II] WHETHER THE COURT CAN APPOINT A GUARDIAN IN THE PRESENCE

OF A NATURAL GUARDIAN?
[¶ 1.] It is most humbly submitted before the Hon’ble court that the court has the authority to
appoint a guardian even when the natural guardian is present. Where the natural guardian has
acted in a way that is unfit towards the well-being of the minor child then the right over the
crucial decisions regarding minor’s life can be taken away from the capacity of the mother as
the natural guardian of her child. The court has been given the authority to remove a guardian
U/Sec. 39 of the Guardians and Wards Act, 1890, if it is proved that the person appointed has
broken the trust by being negligent to the duties as a guardian. 15 Here, various actions of Mrs.
13
Vasudeo Wshwanath Saraf- Vs- New Education Institute and Ors, AIR 1986 SC 2105
14
N. Palanisami v. A. Palaniswamy, 1998 SCC OnLine Mad 305
15
Sec. 39, Guardians and Wards Act, 1890. (All the laws of Indica are Pari Material to that of India)
17
Anisha proves by preponderance of probabilities that Master Karan is not her priority and
hence, Mrs. Anisha is not the correct person to take decisions regarding the child’s life.
[¶ 2.] The deed of adoption executed by Mrs. Anisha in favour of the petitioners is not valid
because it was registered one day after the execution of the ex-parte injunction order against
Mrs. Anisha restraining her from giving Master Karan for adoption. 16 Hence, it is submitted
that the adoption deed does not stop the Hon’ble court from appointing a guardian for the
child.
[¶ 3.] In any custody trial, the welfare of the child is of paramount interest 17 and this is
embodied in many of the international covenants relating to child rights. The overall growth
and development of a child imbibed with moral and ethical values is more important than a
luxurious upbringing. The dominant matter for the consideration of the Court is the welfare
of the child. But the welfare of a child is not to be measured by money only, nor by physical
comfort only. The word `welfare' must be taken in its widest sense.18 The importance of
education and building of social responsibility in a child’s life is even enshrined in the
Declaration of the Rights of the Child (1959).19
[¶ 4.] It is humbly submitted that taking into consideration the above contentions and the
circumstances of the present case the court has the power to appoint a guardian even in the
presence of a natural guardian. To get more clarity regarding the issue, it is necessary to
consider the following:
[2.1] Whether the court can cancel or prevent the appointment of a guardian by the
natural guardian?
[¶ 5.] It is most humbly submitted before the Hon’ble court that the court is empowered to
cancel or prevent the appointment of a guardian by the natural guardian as the matter of
welfare of the minor child should be of paramount importance and it should be the
predominant criteria. In disputes relating to the custody of the minor children, the
consideration can only be the welfare of the child and the rights of the parents has to yield or
give way, is a proposition now very well established and recognised by Courts.20 The
16
MOOT PROPOSITION, Shivam Saraf Memorial 1st National Moot Court Competition, 2020.
17
Githa Hariharan v Reserve Bank of India, AIR 1999 SC 1149
18
re Mc Grath, 1893, 1 Ch.143
19
Principle 7, Declaration of the Rights of the Child (1959) by the General Assembly, resolution 1386 (XIV),
A/RES/14/1386, 20 November 1959.
20
Chethana Ramatheertha vs. Kumar V. Jahgirdar, ILR 2003 KAR 1205.
18
provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956, which gives
certain powers to parents of a child, are devised to fully protect the property of a minor, even
from the depredations of his parents.21 Hence, the rights of Mrs. Anisha as the mother and
natural guardian of Master Karan is of least importance and the deciding factor should be
those supporting the child’s proper and secure upbringing.
[¶ 6.] After the death of Dr. Neeraj, Mrs. Anisha remarried Mr. Rohan who had two sons
already because of which Mrs. Anisha left her minor child with her parents, the petitioner and
his wife.22 Even though Master Karan was pampered and showered with luxurious gifts by
the petitioners these do not provide for a moral, ethical and healthy upbringing of a child. The
child was admitted in a school 55 kms away from their home and a driver was responsible for
his transportation. This will definitely hamper the child’s education which is a huge factor in
one’s life. The fact that the petitioner and his wife were with the minor only during weekends
is another factor that would affect the healthy upbringing of a child. Mrs. Anisha, while
granting the deed of adoption to the petitioner, failed to look into these issues which makes
Mrs. Anisha not a credible person to appoint the guardian for the child in the capacity of a
natural guardian.
[¶ 7.] It was held in Nil Ratan Kundu v. Abhijit Kundu that 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. But over and above physical comforts, moral and ethical values
cannot be ignored. They are equally, or we may say, even more important, essential and
indispensable considerations.23 Therefore, it is requested to the court to look into all these
matters and cancel the appointment of the petitioner as the custodian and guardian of Master
Karan.
[¶ 8.] It is humbly submitted before the court that Mrs. Anisha has the least concern towards
Master Karan, which is proved through her actions. Second marriage of either of the parent is
a factor to be considered while granting custodial rights24 and a negative approach adopted by
any parent is a significant factor weighing against him/her while considering grant of custody
21
Panni Lal vs. Rajinder Singh and Ors. (05.05.1993 - SC) : MANU/SC/0552/1993
22
MOOT PROPOSITION, Shivam Saraf Memorial 1st National Moot Court Competition, 2020.
23
Nil Ratan Kundu v. Abhijit Kundu, (2008)9 SCC 413.
24
Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.
19
of the child by the court25. Sec. 41(d) of the Guardians and Wards Act, 1890 also mentions
that if the second marriage of a woman is to a person who is unfit to be a guardian, it can lead
to cessation of authority as a guardian.26
[¶ 9.] There are previous cases upon which we can rely wherein after realising that the
welfare of the child and the upbringing of the child will be best if not with the mother, it was
decided that the custody of the child should not be with the mother.27 In the present case also
Mrs. Anisha has not acted in the best interest of her child and hence, the court has the
authority to cancel the appointment made by her as the natural guardian.
[2.2] Whether the apex court can decide upon a matter still pending before a
subordinate court?
[¶ 10.] It is most humbly submitted before the Hon’ble court that the court has the inherent
and plenary jurisdiction to transfer pending civil cases from a lower court to itself as the apex
court has been granted wide range of jurisdiction to see to it that justice is served. The
Supreme Court has been conferred with power to direct transfer of any civil or criminal case
from one State High Court to another State High Court or from a Court subordinate to
another State High Court.28 It can be construed that the Constitution of Indica has provided
the apex court the jurisdiction to take up any matter pending in a lower court if it is related to
the facts of the case and is substantial for solving the case.
[¶ 11.] The Hon’ble court U/Sec. 25 of the Code of Civil Procedural Code, 190829 and Sec. 2
of the Supreme Court [Decrees and Orders] Enforcement Order, 195430 has been given an
inherent power to transfer and dispose cases pending in a civil subordinate court if it is
expedient to the ends of justice. Here, the hearing and disposal of the suit filed in the District
court questioning the validity of the deed of adoption registered after the injunction order
restraining Mrs. Anisha from giving Master Kumar for adoption is crucial to the present case
and it should be taken up by the Hon’ble court on its own motion. Since the mother of the
minor was stripped off her powers as the natural guardian with the execution of the ex-parte
25
Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
26
Sec. 41(d), Guardians and Wards Act, 1890.
27
Jitender Arora v. Sukriti Arora, (2017)3 SCC 726; Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC
673; Mr Preetam A Eklaspur v. Smt Vanishree, WP.No.52377/2018 [DD.08.01.2019]
28
Jurisdiction | SUPREME COURT OF INDIA, main.sci.gov.in
29
Sec. 25, Code of Civil Procedure, 1908. (All the laws of Indica are Pari Material to that of India)
30
Sec. 2, the Supreme Court [Decrees and Orders] Enforcement Order, 1954.
20
order of injunction, the adoption deed is invalid and the petitioners cannot claim the custody
and guardianship of the child on the basis of this.
[¶ 12.] It is most humbly submitted before the Hon’ble court that this also violates the
principles of rule of law and natural justice inherent in all the laws of our country. The
concept of rule of law would lose its vitality if instrumentalities of the State are not charged
with the duty of discharging their function in a fair and just manner.31 A fair trial is also a part
of the implementation of rule of law and the timely hearing of a case is vital to it.
[¶ 13.] It is submitted that such a delay is not only against the provisions of law but in fact
infringes the right of personal liberty guaranteed U/Art. 21 of the Indican Constitution. Any
procedure or course of action which does not ensure a reasonable quick adjudication has been
termed to be unjust. Such a course is stated to be contrary to the maxim "Actus Curiae
Neminem Gravabit", that an act of the Court shall prejudice none.32 The Court in various
cases has, in unambiguous terms, held that "the right of speedy trial to be part of Article 21 of
the Constitution of India".33 But, what is more important is that litigants must have complete
confidence in the results of litigation. This confidence tends to be shaken if there is excessive
delay between hearing of arguments and delivery of judgments.34
[¶ 14.] Therefore, it is humbly pleaded before this Hon'ble court to prevent or cancel the
appointment made by Mrs. Anisha since she has not considered the welfare of the child while
deciding and that the court has the authority to appoint a guardian for the child even when
natural guardian is present. It is also pleaded that the court has the jurisdiction to hear the
pending case in District court questioning the validity of the deed of adoption.
[III] WHETHER ADOPTION BY VERBAL AGREEMENT AND THE

SUBSEQUENT ADOPTION DEED IS VALID?
[¶ 1.] In this instant case, it is humbly submitted before this Hon’ble court that the matter of
custody is in accordance with the welfare of the child and not an exclusive right to the natural
31
A. K. Kraipak v. Union of India, AIR 1970 SC 150.
32
Anil Rai v. State of Bihar, MANU/SCOR/68827/2019.
33
Hussainara Khatoon v. Home Secretary, State of Bihar, 1980 (1) SCC 81; Hussainara Khatoon v. Home
Secretary, State of Bihar, 1980 (1) SCC 98; A.R. Antulay v.R.S. Nayak, 1992 (1) SCC 279; Kartar Singh v. State
of Punjab, 1994 (3) SCC 569; Raj Deo Sharma v. State of Bihar, 1998 (7) SCC 507; Raj Deo Sharma II v. State
of Bihar, 1999 (7) SCC 604; Akhtari Bi v. State of M.P., 2001 (4) SCC 355.
34
R.C. Sharma v. UOI, 1976 (3) SCC 574.
21
guardian.35 Hence, even Ms Anusha’s exclusive right over the minor child is subjected to the
welfare of the child. The apex court of India had diluted the authority of mother’s right to
give in adoption.36 Hence, giving in adoption of the minor by guardian is not an absolute
right. Mature thinking is indeed necessary in such a situation to decide what will ensure to the
benefit and welfare of the child.37
[¶ 2.] It is further contended before this Hon’ble court that the evidence in proof of adoption
should be free suspicion of fraud and be consistent and probable as to give no accasion for
doubting it’s truth.38 In this instant case, the deed is subjected to doubting its genuineness.
The registration just after the decree of injunction must be subjected to the illegality.
Moreover, merely being in the custody of maternal grandparents doesn’t take away the rights
of minor with the deceased father’s family.39 In this context, the paternal grandparents also
has the right over the minor.
[3.1] Whether verbal agreement is valid?
[¶ 3.] It is humbly submitted before this Hon’ble court that a verbal adoption cannot be held
valid until and unless it is followed by a contemporaneous deed. The mere fact of the minor
living with the maternal grandparents cannot be taken as a ground for valid adoption.40 There
should be provisions to initiate appropriate action for the best interest of the child since our
constitution protects the right of a child under Art. 14 and Art 21 of the Constitution.41
Hence, it is not the right of natural guardian to be considered instead the best interest of the
minor be considered in matters like this.
[¶ 4.] It is contended before this Hon’ble court that in the absence of sufficient evidence, no
presumption can be made in case of adoption. The aforesaid oral adoption contended by the
petitioners must be proved by them without giving any suspicion. Furthermore, the adoption
deed has to be contemporaneous with respect to the oral adoption. In this instant case, there
isn’t any existence of the deed to be contemporaneous.
35
Rosy Jacob Vs. Jacob A. Chakramakkal, 1973 (1) S.C.C. 840
36
Jai Prakash Khadria v Shyam Sunder Agarwalla, AIR 2000 SC 2172
37
Thirty Hoshie Dolikuka v Hoshim Shavaksha Dolikuka, AIR 1982 SC 127
38
Madhusudan Das v Narayanibai, 1983 SCR (1) 851
39
Ram Das v Gandia Bai, (1997) 2 L.W. 556 (S.C.)
40
Oriental Insurance Co.Ltd v Lalitha Sharma, II (2006) ACC 125
41
Sandhya Alias Supriya Kulkarni & Another v. Union Of India & Another , AIR 1998 Bom 228
22
[¶ 5.] It is humbly pleaded before this Hon’ble court that mother’s right to give in adoption is
subjected to welfare of the child. Children are not mere chattels nor are they toys for their
parents. Absolute right of parents over the destinies and the lives of their children, in the
modern changed social conditions must yield to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to be useful members of the
society and the guardian court in case of a dispute is expected to strike a just and proper
balance between the requirements of welfare of the minor children and the rights of their
respective parents over them.42
[¶ 6.] It is further humbly contented before this Hon’ble court that the verbal adoption cannot
be held valid on the sole ground that the natural guardian has given the child in adoption.
[3.2] Whether the adoption deed registered post the injunction order is valid?
[¶ 7.] It is humbly submitted before this Hon’ble court that only a contemporaneous deed of
adoption can be strong and cogent evidence.43 In this instant case, since the injunction decree
was passed prior to the registration, the deed has no effect and has a less evidentiary value.
Moreover, Sec.16 of the HAMA, 1956 is only a rule of evidence, it cannot be construed as
mandate upon the court to act upon such an adoption deed as a proof of adoption.44 Further it
is also contented before this Hon’ble court that the subsequent conduct of the petitioner after
the injunction shows the motive to not let the child go with the maternal grandparents.
[¶ 8.] The Supreme Court in Delhi Development of Authority V. Durga Chand45, has laid
down the rules of interpretation of documents in India which clearly states that the intention
prevail over the words in the document. In this instant case the intention behind the
registration soon after the injunction must be looked upon. Hence, the factum of adoption
must be established to the satisfaction of the conscience of the Court by the party contending
that there was such an adoption.46
42
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42
43
Nagayasami v. Kochadai Naidu, AIR 1969 Mad 329
44
Meera Agarwalla Bansal v Shyam Sunder Agarwalla, I (2002) DMC 593
45
1973 AIR 2609
46
M. Ramachandran vs M.M. Chandrasekar , (2010 (3) MLJ 830; Pentakota Satyanarayana Vs. Pentakota
Seetharatnam, 2005 (5) CTC 207
23
[¶ 9.] It is further contended before this Hon’ble court that a temporary injunction is granted
when the party suffers irreparable injury and inconvenience is in the party’s favour. 47 In this
instant case, the respondent would have suffered from irreparable injury if injunction was not
granted. The injunction is hence valid and the adoption deed registered post the decree is
ought to be held invalid. Moreover, in these circumstances merely producing a registered
deed of adoption cannot be taken into consideration for proving the factum of adoption.48
[¶ 10.] It is humbly pleaded before this Hon’ble court to make the registered adoption deed
invalid in the light of above mentioned contentions.
[IV] WHETHER WELFARE OF THE CHILD IS THE ONLY FACTOR

DETERMINING THE CUSTODY OF THE CHILD?
[¶ 1.] This respondent humbly submits that the Hon’ble Supreme Court and other courts in
Indica have reiterated time and again that in the proceedings for custody of a minor, the
welfare of the minor is the only consideration49, irrespective of the claims of the parties to the
custody.50 In the case of Neelam v. Mann Singh51 the court went onto observe in its decree
that – Welfare and interest of the child is paramount. A child who is residing with
grandparents for the last several years become emotionally attached to them. In such
circumstances custody of the child should remain with grandparents. This precedent therefore
substantiates the respondent’s contention for the custody. Also it is humbly submitted that,
the orders relating to custody of children are by the very nature not final but are interlocutory
in nature and subject to modification at any future time upon proof of change of
47
Nawab Mir Barkat Ali Khan v. Nawab Zulfekhar Jah Bahdur, AIR 1975 AP 187; S.R.K. Murthy v. Narayana
Das, AIR 1982 AP 384; N.V. Chowdary v Hindustan Steel Works Construction Ltd., AIR 1984 A.P. 110;
Madhavan Pillai v. Inez Rosario, AIR 1971 Ker. 27
48
Dhanno v Tuhi Ram, AIR 1996 P H 203
49
Arathi Bandi Vs. Bandi Jagadrakshaka Rao, 2013 (3) RCR (Civil) 968, Dhanwanti Joshi Vs Madhav Und,
1998(1) RCR (Civil) 190; Elizabeth Dinshaw Vs Arvind M.Dinshaw, 1987 (1) SC 42; Mckee Vs Mckee, 1951
AC 352; Ruchi Majoo Vs Sanjeev Majoo, 2011 (3) RCR Civil, 122;Sarita Sharma vs Sushil Sharma, 2000(2)
RCR (Civil) 367; Mrs.Shilpa Aggarwal Vs. Mr.Aviral Mittal & Anr., 2010(1) RCR (Civil) 231; Smt. Surinder
Kaur Sandhu Vs Harbax Singh Sandhu, 1984 (3) SCC 698; Dr.V.Ravi Chandran Vs. Union of India, 2010 (1)
SCC 174;Surya Vadanan Vs State of Tamil Nadu,2015 (2) SCC (Civil) 183 (SC);Gaytri Bajaj Vs Jiten Bhalla
AIR 2013 SC (Civil) 77 ;Vikram Vir Vohra Vs Shalini Bhalla AIR 2010 SC 1675 ;Mayank bhargava vs Jyoti
Bhargava 2015(2) PLR 15 (P&H);Mausami Moitra Ganguli Vs Jayant Ganguli 2008 (4) RCR (Civil) 551 (SC).
50
Child Custody Laws In India, FORTUNE LEGAL ADVOCATES AND LEGAL ASSOCIATES.
24
circumstances requiring change of custody but such change in custody must be proved to be
in the paramount interest of the child52.
[¶ 2.] Dealing with the similar situation, the Apex Court has laid down the law without any
ambiguity, for custody of minor children the principal consideration for the court is to
ascertain whether the custody of the children can be said to be unlawful or illegal and
whether the welfare of the children requires that the present custody should be changed and
the children should be left in the care and custody of somebody else53. The principle is well
settled that in a matter of custody of a child the welfare of the child is of paramount
consideration for the court. 54
[¶ 3.] The Respondent would like to submit his submission on this issue in two folds, viz,
I. Whether the welfare of the child can override the intent and rights of the natural
guardian?
II. Whether financial stability can be the deciding factor of custody in this context?
[4.1]Whether the welfare of the child can override the intent and rights of the natural
guardian?
[¶ 4.] This respondent would like to draw the attention of this Hon’ble court that it is the best
interest of the child that should be considered over any other parameter for the same cause.
And in such a case if the intent of the natural guardian if, is in contradiction to the welfare of
the child then the decision be taken in the favour of the contention inclining towards the best
interest of the child. The same has been re-iterated by the courts over the period of time.
[¶ 5.] In the case of Saihba Ali v. State of Maharashtra55, the court ordered that despite the
mother being the natural guardian, the custody to be granted to the grandparents considering
the paramount principle of welfare of the child in question. In the case of Kirtikumar
Maheshankar Joshi v. Pradipkumar Karunashanker Joshi56." the children were living with
their maternal uncle after the unnatural death of their mother. In the interest and welfare of
the children, the father's legal rights were superseded, and custody was awarded to the
51
2015 (2) RCR (Civil) 291
52
Dr. (Mrs.) Veena Kapoor vs Shri Varinder Kumar Kapoor, AIR 1982 SC 792
53
Delhi high court gives child’s custody to grandparents, DNA INDIA.
54
Syed Saleemuddin v. Dr. Rukhsana, (2001) 5 SCC 247, K.Ponnarasi versus P.Alagu Mu (C.M.A.(MD)No.411
of 2015
55
(2003) 7 SCC 250
56
(1992) 3 SCC. 573 (India)
25
maternal uncle instead of the father. These precedents are significant because the rights of a
natural guardian were bypassed to protect the interest of the children. In Shakuntala
Sonawane v. Narendra Khaire,57 while awarding custody of the child to the maternal
grandmother, the Bombay High Court noted that the court can appoint some other fit person
as the guardian under the provision of the Act even if a natural guardian is alive and stakes a
claim. This was the result in deciding the welfare of the minor. These are just few out of the
many similar case laws that this respondent humbly prays the court to consider as a precedent
to pass a decree in its favour.58
[¶ 6.] This respondent would also like to bring to the notice of this Hon’ble court that while
the “welfare of the child” principle dominates the domestic legal framework; a comparable
legal standard is found in international human rights law. According to the United Nations
Convention on the Rights of the Child 59
(hereinafter, CRC), “in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration 60. The Convention directs the State Parties to ensure that “both parents
have common responsibilities for the upbringing and development of the child”61. The CRC
provides that a child should be separated from his or her parents if there is “abuse or neglect
of the child by the parents, or where the parents are living separately and a decision must be
made as to the child’s place of residence” Welfare of the child, as a criterion for decision, is
generally flexible, adaptable and reflective of contemporary attitudes regarding family within
society62 . The Committee on the Rights of the Child has suggested that the following
considerations can be relevant: the child’s views; the child’s identity (such as sex, sexual
orientation, national origin, religion and beliefs, cultural identity, and personality);
preservation of the family environment and maintaining relations (including, where
appropriate, extended family or community); the care, protection and safety of the child; any
situation of vulnerability (disability, minority status, homelessness, victim of abuse, etc.); and
57
(2003 (2) HLRI Bombay (India)
58
Jwala vs .Bachi Lal, AIR 1942 Cal 215, Chandrakala Menon and Ors. vs. Vipin Menon and Ors.,
MANU/SC/0459/1993, Athar Hussain Vs. Syed Siraj Ahmed and Ors., AIR 2010 SC 1417
59
UN Commission on Human Rights, Convention on the Rights of the Child., 7 March 1990,
E/CN.4/RES/1990/74, available at: https://www.refworld.org/docid/3b00f03d30.html [accessed 23 August
2020]
60
Id, at Art 3 (1989)
61
Id., at Art. 18
62
Gilmore, Stephen, Great Debates: Family Law, Palgrave Macmillian, (2014) pp. 76-83
26
the child’s right to health and right to education 63

. Article 51(c) of the Constitution of
Indica64, which requires the government of Indica to respect international law, all branches of
government are obligated to respect, protect, and fulfil the verification of meeting the
parameter of the child’s welfare while in the custody of the guardian.
[¶ 7.] The court always considers the best interest of the child. In the above cases we can
observe that the court awarded custody only when it is physically and mentally possible for
the grandparents to take care of the child65. This principle has seen its application not merely
in Indica, but worldwide.66
[¶ 8.] Therefore, this respondent humbly pleads that when courts have earlier and time and
again only considered the welfare as the numer-uno priority and denied even the natural
guardian the custody and rather given the grandparents or other relatives who in the eyes of
the court were the best care takers of the child, why not in this context as well, as it is evident
that the respondent would be a better care giver to the child than the petitioner.
[4.2]Whether financial stability can be the deciding factor of custody in this context?
[¶ 9.] This respondent humbly submits that it is a well settled principle that it should be the
best of interest that has to be given the first and foremost priority, negating any other factor
that proves to be countering it unless its harmful to an extend of destroying the welfare itself
of the child in question.
67
[¶ 10.] In the case of Ashok Samjibhai Dharod v. Neeta Ashok Dharod the Bombay High
Court held that affluence of the father or his relatives is not a factor in his favor for giving
him custody. In the case of Prabhati Mitra vs D.K. Mitra 68, it was held that the the "welfare
principle" is the proper test to be applied in cases of disputes between the parents and is now
universally accepted as applicable in all courts dealing with this issue, whether it is
matrimonial jurisdiction or guardianship jurisdiction. The welfare of a child is not to be
measured by money alone, nor by physical comfort only, and this has been the notion not just
63
General Comment 14, at 52–79.
64
The Constitution Of Indica, 1950, art. 51
65
Aditi B Madhusudan, A Critical Study on Custody of Minors to Grandparents in India, Volume 3, JFAL, 01.
01-06, 2020
66
Jason P Howie, Two Sets of Grandparents Battle Over Custody of Grandkids, JASON P HOWIE, (August,
24, 2020, 10:04 AM) https://jasonpaulhowie.com/two-sets-grandparents-battle-custody-grandkids/
67
[II(2001) DMC 48 Bom]
68
25 (1984) DLT 186
27
69 70
in our country but world-wide. In the case of Suresh Babu v. Madhu," the mother was
thrown out of the matrimonial home, and the father kept the female child, aged eighteen
months. The mother lived with her grandparents and sought custody under Section 25 of the
Guardians and Wards Act, 1890. The court awarded custody to the mother. The court stated
that the child's welfare should be interpreted in the broad sense and not merely with regard to
the child's economic and physical well-being. Even though the father claimed to be wealthier
than the mother, the court noted that he was busy with his business and the child would get
better love and attention from the mother.
[¶ 11.] Indeed the term "paramount" was being used in the judgements to describe the
71
importance given to the-welfare -of the child, as in D'Alton v. D'Alton (1878) and Re -
Newton72 (1896). As per the Guardianship of Infants Act 192573, it is directed the courts that
in decision-making concerning custody and access of children the welfare of the child should
be the first and paramount consideration, and that the mother and father were equal before the
law. It must be read in its largest possible sense, that is to say, as meaning that every
circumstance must be taken into consideration, and the court must do what under the
circumstances a wise parent acting for the true interest of the child would or ought to do.
[¶ 12.] Thus the respondent would like to reiterate the fact that in similar disputes arisen
before the court of law, the courts have laid more emphasis on the well-being of the child
rather than on the economic superiority of one of the parents, although the relative wealth of
parents is sometimes still relevant. This respondent also requests to the Hon’ble court that if
required it may order an enquiry similar to that of, in the case of Sarita Sharma v. Sushil
Sharma74
69
Re Fynn, (1848) 2 De & Sm 457, Re Curtis, (1859) 28 LJ Ch 458, Philip v. Philip, (1872) 41 LJ P&M 89.
70
AIR 1984 (Mad.) 186 (India.)
71
D'Alton v. D'Alton, (1878) 4PD 87
72
Re Newton, [18961 1 Ch 740
73
Guardianship of Infants Act, 1925, s. I (Imperial). 12 Habbury's Statutes of England.
74
(2000) 3 SCC 14: 2000 SCC (Cri) 568
28
PRAYER
WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited it
is most humbly prayed before this Hon’ble Court that the Special Leave Petition be allowed
and the custody and guardianship of the minor be given to the respondent considering the
paramount welfare of the minor.
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.
Place: ___________,
Date: , 2020. S/d____________
COUNSEL FOR THE RESPONDENT
29

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TEAM CODE: NLC 137

SHIVAM SARAF MEMORIAL 1ST NATIONALVIRTUAL

MEMORANDUM OF SPECIAL LEAVE PETITION

(U/Art 136 OF INDICAN CONSTITUTION)

Mr. RAKESH MEHTA ……….PETITIONER

MEMORANDUM ON BEHALF OF THE RESPONDENT

COUNSEL FOR THE RESPONDENT

II. FOREIGN CASE LAWS 8 FCaseLaws

III. LEGISLATIONS 8 Legislations

IV. INTERNATIONAL COVENANTS 8 ICovenants

VI. COMMENTARIES 9 Commentaries

VII. WEBSITES 9 Websites

STATEMENT OF FACTS 10 Facts

S. No. CASE TITLE CITATION PP

2. A.R. Antulay v.R.S. Nayak 1992 (1) SCC 279 Passim

3. Akhtari Bi v. State of M.P. 2001 (4) SCC 355. Passim

4. Anil Rai v. State of Bihar MANU/SCOR/68827/2019 Passim

11. Banwari Lal v. Trilok Chand, AIR 1980 SC 419 Passim

18. Delhi Development of Authority V. 1973 AIR 2609 Passim

19. Dhanno v Tuhi Ram AIR 1996 P H 203 Passim

27. Gaytri Bajaj Vs Jiten Bhalla AIR 2013 SC (Civil) 77 Passim

38. Kirtikumar Maheshankar Joshi v. (1992) 3 SCC. 573 (India) Passim

41. Madhusudan Das v Narayanibai 1983 SCR (1) 851 Passim

42. Mausami Moitra Ganguli v. Jayant (2008) 7 SCC 673 Passim

52. Narpat Singh v. Jaipur AIR 2002 SC 2036. Passim

57. Oriental Insurance Co.Ltd v Lalitha II (2006) ACC 125 Passim

63. R.C. Sharma v. UOI 1976 (3) SCC 574. Passim

70. Saihba Ali v. State of Maharashtra (2003) 7 SCC 250 Passim

II. FOREIGN CASE LAWS

S. No. CASE TITLE CITATION PP

S. No. TITLE OF LEGISLATION PP.

1. CONSTITUTION OF INDIA, 1950 Passim

2. CODE OF CIVIL PROCEDURE, 1908 Passim

3. GUARDIANS AND WARDS ACT, 1890 Passim

4. HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 Passim

5. HINDU MINORITY AND GUARDIANSHIP ACT, 1956 Passim

6. INDIAN REGISTRATION ACT, 1908 Passim

7. FAMILY COURTS ACT, 1984 Passim

IV. INTERNATIONAL COVENANTS

S. No. COVENANT PP.

S. No. TITLE OF JOURNAL PP.

1. ALL INDIA REPORTER (AIR) Passim

2. SUPREME COURT CASES (SCC) Passim

S. No. AUTHOR TITLE EDITION PP.

1. Mulla Mulla Hindu Law 18th Edn. Passim

2. V.N. Shukla CONSTITUTION OF INDIA 13th Edn. Passim

S. No. TITLE OF JOURNAL PP.

WHETHER THE SPECIAL LEAVE PETITION IS MAINATINABLE BEFORE THE

WHETHER THE COURT CAN APPOINT A GUARDIAN IN THE PRESENCE OF A

WHETHER ADOPTION BY VERBAL AGREEMENT AND THE SUBSEQUENT DEED

WHETHER WELFARE OF THE CHILD IS THE ONLY FACTOR DETERMINING THE

[I] WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE

[II] WHETHER THE COURT CAN APPOINT A GUARDIAN IN THE PRESENCE

[III] WHETHER ADOPTION BY VERBAL AGREEMENT AND THE

[3.1] Whether verbal agreement is valid?

[IV] WHETHER WELFARE OF THE CHILD IS THE ONLY FACTOR

the child’s right to health and right to education 63