CLASS MOOT COURT

Roll No. 1662

BEFORE THE HON’BLE FAMILY COURT OF MOHALI

IN THE MATTER OF

SHEELA…………………..………………………………………………….... PETITIONER

V.

RANA…………………….…………………………………………………….RESPONDENT

CASE NUMBER. ****/2019

ON SUBMISSION TO THE HON’BLE FAMILY

COURT

UNDER SEC.7 OF THE FAMILY COURTS ACT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER.

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TABLE OF CONTENTS

TABLE CONTENTS ...........................................................................................................................ii

LIST OF ABBREVIATIONS ............................................................................................................ iii

INDEX OF AUTHORITIES .............................................................................................................. iv

STATEMENT OF JURISDICTION ..................................................................................................vi

SUMMARY OF FACTS…………………………………………………………………………… vii

ISSUES PRESENTED ...................................................................................................................... viii

SUMMARY OF ARGUMENTS……………………………………………………………………ix

ARGUMENTS ADVANCED…………………………………………………………………….1-9

ISSUE 1-THAT THE IRRETRIEVABLE BREAKDOWN THEORY APPLIES IN INDIA AND IS A VALID GROUND
TO AWARD A DECREE OF DIVORCE ……………………………………………………..…………1-5

ISSUE 2- THAT THE CUSTODY OF THE CHILD SHALL BE AWARDED TO THE MOTHER …...............6-9

PRAYER………………………..……………………….……………………………………X

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LIST OF ABBREVATIONS

§ Section
¶ Paragraph
A.I.R All India Reporter
All Allahabad
Anr Another
Art. Article
Ass. Association
Asst. Assistant
Capt. Captain
CONST. Constitution of India
DMC Divorce and Matrimonial Cases
Ed Edition
Govt. Government
HC High court
HMA Hindu Marriage Act
Hon’ble Honorable
LJ Lord Justice
M.P. Madhya Pradesh
Mad. Madras
Mohd Mohammad
Ors. Others
Pesh Peshawar
RCR Recent Criminal Reports
Retd. Retired
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
U.K. United Kingdom
v. Versus
Vol. Volume
W.B. West Bengal

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INDEX OF AUTHORITIES

I. CASES CITED

1. INDIAN CASES

1. Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415

2. Balram Yadav vs Fulmaniya Yadav. AIR 2016 SC 2161

3. Bimla and ors v. Anita 2015 (3) RCR 153

4. Chandrakala Menon v. Capt. Vipin Menon (1993) 2 SCC 6

5. Chetan Dass v. Kamla Devi (2001) 4 SCC 250

6. K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226

7. Kanchan Devi v. Pramod Kumar Mittal AIR 1996 SC 3192

8. Krishna v. Som Nath (1996) DMC 667

9. Lalitha v. Manickswamy (2001) DMC 679 SC

10. Manish Goel vs. Rohini Goel (2010) 4 SCC 393

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

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

13. Ms. Jorden Diengdeh v. S. S. Chopra AIR 1985 SC 935

14. Mt. Mansa Devi v. Makhar, AIR 1936 Pesh 207

15. Naveen Kohli v Neelu Kohli AIR 2006 SC 1675

16. Ram Prasad v. District judge, Gorakhpur AIR 1920 All 8911
17. Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263

18. Romann Sharma v. Arun Sharma AIR 2015 SC 2232

19. Rosy Jacob v. Jacob Achakramakka (1973) 1 SCC 840

20. Salome v. Prince D. Immanuel 2017 SCC OnLine Mad 1651

21. Sangamitra Ghose v. Kajal Kumar Ghosh (2007) 2 SCC 200

22. Savitri Pandey v. Prem Chandra AIR 2002 SC 591

23. Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam (2010) 10 SCC 314

24. Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698

25. Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka AIR 1982 SC 1276
26. V. Bhagat v. D. Bhagat (1994) 1 SCC 337

27. Vikram Vir Vohra v. Shalini Bhalla AIR 2010 SC 1675

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2. FOREIGN CASES

1. Lodder v. Ladder 1921 New Zealand Law Reports 786

2. Re Mcgrath (Infants) (1893) 1 Ch 143

II. STATUES AND ACTS

1. HINDU MARRIAGE ACT, 1955.

2. THE CONSTITUTION OF INDIA

III. BOOKS REFFERED

1. D. D. BASU COMMENTARY ON THE CONSTITUTION OF INDIA, (14TH ED., LEXIS NEXIS

PUBLICATIONS, 2009).
2. DR. PARAS DIWAN, LAW OF MARRIAGE AND DIVORCE, (5TH ED, UNIVERSAL LAW
PUBLISHING CO, 2008).
3. M.N. SRINIVASAN‟S, “COMMENTARY ON THE HINDU MARRIAGE ACT, 1955”, SECOND
EDITION, DELHI LAW HOUSE.
4. HALSBURY‟S LAW OF INDIA, FAMILY LAW II, (LEXIS NEXIS) VOL. 28, 2007

IV. REPORTS AND JOURNALS

1. ALL INDIA REPORTER.

2. SUPREME COURT CASES.

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STATEMENT OF JURISDICTION

THE COUNSEL FOR THE PETITIONERS HAVE HUMBLY APPROACHED THE HON’BLE
SUPREME COURT OF INDIA FOR THE FOLLOWING MATTER UNDER SEC. 71 OF THE
FAMILY COURTS ACT.

THE PRESENT MEMORIAL SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

1
(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for
the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be,
such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature,
namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be
null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or
dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

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STATEMENT OF FACTS

1. The Marriage solemnized between Sheela and Rana was according to Hindu rites.

2. Rana and Sheela both were working in the capacity of the senior manager of the company,
and the vice principal of a school respectively.

3. Both the parties wanted to have children. The doctor who informed them that though
medically nothing was wrong with either of them, they were just incompatible to have
children. This led to every day fights among them, and on many occasions they turned ugly.

4. On 10th Sep. 2017 Rana adopted a Child aged 2 years from the City Orphanage. A puja was
organized although Sheela attended but was totally silent and did not express anger or joy
at the occasion.

5. With the passage of time Sheela became attached to the child, but her relation with Rana
got much worse.

6. In 2018 Sheela applied for divorce on grounds of incompatibility, saying that the marriage
had gone beyond repair and that the two were totally incompatible. She also claimed the
custody of the child.

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ISSUES PRESENTED

ISSUE – I

WHETHER IRRETRIEVABLE BREAKDOWN THEORY APPLIES IN INDIA?

ISSUE – II

WHETHER THE CUSTODY OF THE CHILD BE AWARDED TO THE MOTHER

OR THE FATHER?

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SUMMARY OF ARGUMENTS

CONTENTION I- THAT THE IRRETRIEVABLE BREAKDOWN THEORY APPLIES IN

INDIA AND IS A VALID GROUND TO AWARD A DECREE OF DIVORCE.

It is humbly submitted before the Hon’ble Court that the theory of irretrievable breakdown of
marriage though not expressly provided under the Hindu Marriage Act, 1955 has been upheld
by the court in various precedents.

That it appears to be necessary to introduce irretrievable breakdown of marriage and mutual

consent as grounds of divorce in all cases. We suggest that the time has come for the
intervention of the legislature in those matters to provide fora uniform code of marriage and
divorce and to provide by law for a way out of the unhappy situation in which couples like the
present have found themselves.

Some jurists have also expressed their apprehension for introduction of irretrievable breakdown
of marriage as a ground for grant of the decree of divorce.

CONTENTION II- THAT THE CUSTODY OF THE CHILD SHALL BE AWARDED TO THE
MOTHER.

It is humbly submitted before this Hon’ble Court that the custody of all children below the age
of 5 years is given to the mother.

It is not merely physical custody of the minor but due protection of the rights of ward's health,
maintenance and education. The power and duty of the Court under the Act is the welfare of
minor. In considering the question of welfare of minor, due regard has of course to be given to
the right of the father as natural guardian but if the custody of the father cannot promote the
welfare of the children, he may be refused such guardianship.

The question regarding the custody of a minor child cannot be decided on the basis of the legal
rights of the parties. The custody of a child has to be decided on the sole and predominant
criterion of what would best serve the interest and welfare of the minor. It would be in the
interest and welfare of minor that she would be permitted to be in the custody of her mother.

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ARGUMENTS ADVANCED

I. THAT THE IRRETRIEVABLE BREAKDOWN THEORY APPLIES IN INDIA AND IS A

VALID GROUND TO AWARD A DECREE OF DIVORCE.

The Hindu Marriage Act, 1955 is applicable to the present dispute as it is clearly established that the
marriage was solemnized by way of Hindu Rituals. Hence as per Section 2(a) of HMA, 1955 which
states that this Act shall apply to any person who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or
Arya Samaj. Hence the present dispute is well within the ambit of the Hindu Marriage Act.

Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both
marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court,
since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview
of the jurisdiction of the Civil Courts.2

It is humbly submitted before this Hon’ble Court that the theory of irretrievable breakdown of marriage
though not expressly provided under the Hindu Marriage Act, 1955 has been upheld by the court in
various precedents.

Irretrievable breakdown of marriage is not a special ground for divorce under Hindu Marriage Act, 1955
unlike the other three theories of divorce. However an attempt has been made to introduce the concept
in section (13) (1A) which states that:

Either party to marriage, whether solemnized before or after the commencement of this act may also
present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) That there has been no resumption of cohabitation as between the parties to marriage for a period
of one year or upward after the passing of decree for judicial separation in a proceeding to which
they were parties; or

(ii) There has been no restitution of conjugal rights as between the parties to the marriage for a
period of one year or upward after the passing of the decree for restitution of conjugal rights in
a proceeding to which they were parties.

In either case if the parties are not able to resume cohabitation for one year, any of the party to marriage
can obtain a decree for divorce. Thus the common feature is the condition of living separately for a

2
Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161.
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reasonably longer period of time.

The Marriage Amendment Bill, 20103 provides for an amendment of the present grounds of divorce
under Sec.13 of the HMA, 1955. The bill provides for a petition for the dissolution of marriage by a
decree of divorce may be presented to the district court by either party to a marriage on the ground that
the marriage has broken down irretrievably.

The Madras High Court has observed that according to Hindu Law, irretrievable breakdown of marriage
is not considered as a valid ground for divorce but following the precedents, has held irretrievable
breakdown of marriage a valid ground for divorce.4 Hence affirming that the theory of irretrievable
breakdown of marriage is applied in India although has not been provided expressly under any act or
statue.

In Ms. Jorden Diengdeh v. S. S. Chopra5 the Hon’ble Supreme Court observed that it appears to be
necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce
in all cases. We suggest that the time has come for the intervention of the legislature in those matters to
provide fora uniform code of marriage and divorce and to provide by law for a way out of the unhappy
situation in which couples like the present have found themselves.

According to Hindu Marriage Act, 1955, Section 12 of the Act provides for Voidable marriages that
any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and
may be annulled by a decree of nullity on any of the following grounds, that the marriage has not been
consummated owing to the impotence of the respondent. The impotency whether complete, partial,
selective etc. of the Respondent that resulted in non-consummation of marriage has to be proved
medically by the petitioner, hence onus to prove it lies on you to get relief from the court. The instant
case they consulted a doctor who informed them that though medically nothing was wrong with either
of them, they were just incompatible to have children

Section 30 of the Special Marriage Act6 prescribes Decree of Nullity if marriage is not consummated
because of natural causes or impotency.

The Supreme Court in the case of Kanchan Devi v. Pramod Kumar Mittal7 has held that the marriage
between the appellant and the respondent has irretrievably broken down and that there was no possibility
of reconciliation, the Supreme Court held that the marriage between the appellant and the respondent
shall stand dissolved by a decree of divorce. In the present case also the marriage between the appellant

3
§13(C)1, Marriage Amendment Bill, 2010
4
Salome v. Prince D. Immanuel, 2017 SCC OnLine Mad 1651.
5
Ms. Jorden Diengdeh v. S. S. Chopra, AIR 1985 SC 935.
6
§ 30, Special Marriage Act, 1954.
7
Kanchan Devi v. Pramod Kumar Mittal, AIR 1996 SC 3192.
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and the respondent has come to a standstill. Since the appellant was not conceiving a child, everyday
fights took place, and on many occasions they turned ugly. It is clearly stated with the passage of time
Sheela became attached to the child, but her relation with Rana got much worse. Hence there exist no
possibility of reconciliation.

The court has retreated in Krishna v. Som Nath that marriage is irretrievably broken and it is in the
interest of justice that decree of divorce be granted.8 Hence in the instant case also the Hon’ble court
shall grant a decree of divorce in the interest of the parties to the suit.

The English law is also very clear on the ground of irretrievable breakdown of marriage. Salmond J.
in Lodder v. Ladder9 enunciated this concept by stating that “when a matrimonial tie has ceased to exist
de facto for that period it should cease to exist de jure as well” because the essential purposes of the
marital bond stand frustrated.

In England, the Divorce Reform Act, 1969 has abolished the distinction between the sexes, and there is
only one ground of divorce, namely that the marriage has broken down irretrievably. The sole ground
on which a petition for divorce may be presented to the court by either party to a marriage is that the
marriage has broken down irretrievably.

The Supreme Court of India in a recent case of Naveen Kohli v. Neelu Kohli10 has asked the Indian
parliament to seriously consider the matter and bring an amendment in the present law. The apex
court held that before we part with the facts, on the consideration of the totality of the facts, this court
would like to recommend to the Union of India to seriously consider for the bringing of the
amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a
ground for grant of divorce.”

Public interest demands not only that the married status should, as far as possible, as long as possible,
and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of
salvage, public interest lies in the recognition of that fact that since there is no acceptable way in which
a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties
tied for ever to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of
marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act
would put human ingenuity at a premium and throw wide open the doors to litigation, and will create

8
Krishna v. Som Nath, (1996) DMC 667 (P&H).
9
Lodder v. Ladder, 1921 New Zealand Law Reports 786.
10
Naveen Kohli v Neelu Kohli, AIR 2006 SC 1675.
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more problems than are sought to be solved.

The Law Commission of India, on reference made by the Central Government, after the Supreme
Court in Naveen Kholi’s11 case in its 71st report has made a detailed analysis of the theory and has
described how exactly it could be incorporated in the present law. In 217th report the law commission
has further urged the government to make amendments to introduce the theory.

It is pertinent to note that in the instant case it is asserted that there is no life in the marriage bond and
that it should be dissolved for this reason. The Court in K. Srinivas Rao v. D.A. Deepa,12 in which it
was held that a marriage which is dead for all purposes cannot be revived by the court’s verdict, if the
parties are not willing. Hence in the present case also saying that the marriage had gone beyond repair
and that the two were totally incompatible is in consonance with the court’s verdict in K. Srinivas Rao
v. D.A. Deepa.

The Supreme Court in another case has also upheld in Savitri Pandey v. Prem Chandra Pandey the
need for inclusion of irretrievable breakdown of marriage as a ground for divorce. The law cannot
compel a woman, who is emotionally and mentally unable to cope with a marriage, to remain bound
in wedlock to her spouse even when it is established that the marriage is dead. 13

The Hon’ble Apex Court, wherein the court has observed that we are fully convinced that the marriage
between the parties has irretrievably broken down because of incompatibility of temperament. In fact
there has been total disappearance of emotional substratum in the marriage. The matrimonial bond
between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage
and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to
declare defunct de jure what is already defunct de facto.14

The court also relied on Anil Kumar Jain v. Maya Jain15, to hold that the doctrine of irretrievable break-
down of marriage is available to the parties. In the present case matrimonial bond between the parties
is beyond repair and the substratum in the marriage binding the two has ceased to exist. Hence the
doctrine of irretrievable break-down of marriage shall be applicable to the present dispute.

The case that unusual step of granting the divorce was being taken only to clear up the insoluble mess
when the Court finds it in the interests of both the parties the decree of divorce shall be granted.16

11
Ibid.
12
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
13
Savitri Pandey v. Prem Chandra, AIR 2002 SC 591.
14
Sangamitra Ghose v. Kajal Kumar Ghosh, (2007) 2 SCC 200.
15
Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415.
16
Lalitha v. Manickswamy, (2001) DMC 679 SC.
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This Court aptly observed in Chetan Dass v. Kamla Devi17 that the Matrimonial matters are matters of
delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection
with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the
social norms as well.

The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms
and changed social order. It is sought to be controlled in the interest of the individuals as well as in
broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a
disturbed and porous society.

The institution of marriage occupies an important place and role to play in the society, in general.
Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a
straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of
the other facts and circumstances of the case.

In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma18, this Court observed
that the respondent wife was living separately and the marriage has broken down irretrievably with no
possibility of the parties living together again.

The Court further observed that it will not be possible for the parties to live together and therefore there
was no purpose in compelling both the parties to live together.

This court in a series of judgments has exercised its inherent powers for dissolution of a marriage where
the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has
broken down irretrievably, even if the facts of the case do not provide a ground in law on which the
divorce could be granted.19

The Apex Court came to the conclusion that there is no scope of settlement between them because,
according to the observation of this Court, the marriage has irretrievably broken down and there is no
chance of their coming together. This Court granted decree of divorce.20 Hence in the present case also
a decree of divorce shall also be granted.

In V. Bhagat v. D. Bhagat21, this Court while allowing the marriage to dissolve on ground of mental
cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the

17
Chetan Dass v. Kamla Devi, (2001) 4 SCC 250.
18
Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263.
19
Manish Goel vs. Rohini Goel, (2010) 4 SCC 393.
20
Chandrakala Menon vs. Vipin Menon, (1993) 2 SCC 6.
21
V. Bhagat v. D. Bhagat, (1994) 1 SCC 337.
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case. In the instant case there exist mental cruelty since the marriage cannot be consummated.

Hence on the ground of mental cruelty and in view of the irretrievable breakdown of marriage the decree
of divorce shall be granted.

Hence the court shall take into consideration that the irretrievable breakdown theory applies in India
and hence is a valid ground to award a decree of divorce. Hence in the instant case divorce shall be
granted on this vary ground.

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II. THAT THE CUSTODY OF THE CHILD SHALL BE AWARDED TO THE MOTHER.

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5
years is given to the mother.22 The custody of boys and unmarried daughters is given to the father.
Custody of illegitimate children is given to the mother first and then the father while the guardianship
of a married girl is given to her husband.23 The Hindu Minority and Guardianship Act, 1956 exists in
harmony with the Guardians and Wards Act, 1890.

In a custody battle between estranged parents, a minor child, who has not completed five years of age,
shall be allowed to remain with the mother. The Supreme Court has ruled saying that in such cases the
child should not be treated as ‘chattel’. It is only the child’s welfare which is the focal point for
consideration.24

The Principles of law as laid down in Rosy Jacob v. Jacob Achakramakka25, are equally applicable
in dealing with the custody of a child under Section 26 of the Hindu Marriage Act. Court held
that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of
the rights of ward's health, maintenance and education. The power and duty of the Court under the Act
is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be
given to the right of the father as natural guardian but if the custody of the father cannot promote the
welfare of the children, he may be refused such guardianship.

The Hon’ble Supreme Court of India in Romann Sharma v. Arun Sharma26 has held that on account
of dispute between husband and wife over the custody of the minor child. The custody the child
below the age of 5 years, was given to the mother, who was highly qualified than husband and had
regular income from salary. In the instant case the mother is competent enough to raise the child on her
own since she has a regular source of income as she is working as a vice principal in a school.

The principles in relation to the custody of a minor child are well settled. In determining the question
as to who should be given custody of a minor child. In Bimla and ors v. Anita27, the apex court held that
Mother is the best person to bring up her minor son and to effectively take care of his interest and in
indeed, the welfare of the child lies with his mother.

Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any

22
§ 6(a), Hindu Minority and Guardianship Act, 1956.
23
§ 7, Hindu Minority and Guardianship Act, 1956.
24
Vikram Vir Vohra v. Shalini Bhalla, AIR 2010 SC 1675.
25
Rosy Jacob v. Jacob Achakramakka, (1973) 1 SCC 840.
26
Romann Sharma v. Arun Sharma, AIR 2015 SC 2232.
27
Bimla and ors v. Anita, 2015(3) RCR (Civil) 153 (SC).
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proceeding under the said Act, the Court could make, from time to time, such interim orders as it might
deem just and proper with respect to custody, maintenance and education of minor children, consistently
with their wishes, wherever possible.28

The Hon'ble Supreme Court held that the principles of law in relation to the custody of a minor child
are well settled. It is trite that while determining the question as to which parent the care and control of
a child should be committed, the first and the paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to
the custody of a child contained in both the Guardians and Wards Act, 1890 (Section 17) and the Hindu
Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a
predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital
factor of the welfare of the minor.29

Sec.7 of the Hindu Minority and Guardianship Act 1956 provides for Natural guardianship of adopted
son. The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive
father and after him to the adoptive mother.30 The Hon’ble Supreme Court held that Section 6 of the
Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the
paramount consideration as to what is conducive to the welfare of the minor.31

Sec. 13 of the Hindu minority and guardianship Act 1956 provides for the Welfare of minor to be
paramount consideration.

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare
of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship
will not be for the welfare of the minor.32

The glimpse of welfare can be taken as the paramount consideration for custody of the child, can be
traced in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka33, where the court held
that "The principles of law in relation to the custody of a minor appear to be well-established. It is well
settled that any matter concerning a minor, has to be considered and decided only from the point of
view of the welfare and interest of the minor."

28
§ 26, Hindu Marriage Act, 1955.
29
Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
30
§ 7, Hindu Minority and Guardianship Act 1956.
31
Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698.
32
§ 13, Hindu Minority and Guardianship Act 1956.
33
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276.
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The learned judges in previous judicial decisions of Mt. Mansa Devi v. Makhar34, where Middleton J.,
clarified that the word "welfare" meant both material and spiritual welfare of the minor. Furthermore,
In Ram Prasad v. District judge, Gorakhpur35, the Allahabad High Court held that the word 'welfare'
meant not only material but 'moral' welfare as well.

The Hon'ble Supreme Court observed that if we analyze the above provisions, one thing is clear that in
a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not
rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section
13 of the Act 1956 has to be construed literally and must be taken in its widest sense.36 Recently, in
Mausami Moitra Ganguli v. Jayant Ganguli, we have held that the first and the paramount consideration
is the welfare of the child and not the right of the parent.37

The English law, no less than Indian law, lays emphasis primarily on the welfare of the child. In Re
Mcgrath (Infants)38, Lindley J., said “The dominant matter for the consideration of the court is the
welfare of the child. But the welfare of the child is not to be measured by money only, or by physical
comfort only. The word "welfare" must be taken in its widest sense.” Bearing these principles in mind,
we can say the welfare of the minor can only be attained if he remains in the custody of the mother.

The question regarding the custody of a minor child cannot be decided on the basis of the legal rights
of the parties. The custody of a child has to be decided on the sole and predominant criterion of what
would best serve the interest and welfare of the minor. It would be in the interest and welfare of minor
that she would be permitted to be in the custody of her mother.39

34
Mt. Mansa Devi v. Makhar, AIR 1936 Pesh 207.
35
Ram Prasad v. District judge, Gorakhpur, AIR 1920 All 8911.
36
Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2010) 10 SCC 314.
37
Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
38
Re Mcgrath (Infants), (1893) 1 Ch 143.
39
Supra Note 19.
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PRAYER

In the light of facts of the case, issues raised, arguments advanced and authorities cited, the
counsel on behalf of the Petitioners humbly prays before the District Family Court to
adjudge and declare that:

1. THE IRRETRIEVABLE BREAKDOWN THEORY APPLIES IN INDIA AND IS A VALID

GROUND TO AWARD A DECREE OF DIVORCE. HENCE, THE DECREE OF DIVORCE
BE GRANTED.

2. THE CUSTODY OF THE CHILD SHALL BE AWARDED TO THE MOTHER.

Or pass any other order, direction and relief that it deems fit in the interest of equity, justice
and good conscience.

For this Act of Kindness, the counsel on behalf of the Petitioners as duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/-

COUNSEL FOR THE PETITIONER.

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