MEMORIAL ON BEHALF OF PETITIONER

V.R KRISHNAN EZHUTHACHZN LAW COLLEGE,

ELEVANCHERY
10TH SEMESTER INTRA-CLASS MOOT COURT

BEFORE THE HON’BLE FAMILY

COURT OF PALAKKAD

IN THE MATTERS OF
RITU PETITIONER
VS.
ANISH RESPONDENT

OP 1000345\23
GOP 245\23

ON SUBMISION TO THE HON’BLE FAMILY COURT OF

PALAKKAD

UNDER SECTION 7 OF FAMILY COURTS ACT, 1984

COUNSEL FOR PETITIONER

Ganga Jayadeep
Roll No.25, B.B.ALL.B(Hons)
Gopika T.R
Roll No.29, B.B.ALL.B(Hons)

MEMORIAL ON BEHALF OF PETITIONER

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 MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .....................................................................3 - 4

INDEX OF AUTHORITIES ......................................................................5 - 6

STATEMENT OF JURISDICTION ...........................................................7

STATEMENT OF FACTS ...........................................................................8

ISSUES RAISED............................................................................................9

SUMMARY OF ARGUMENTS ...................................................................10

ARGUMENTS ADVANCED.....................................................................11-22

WHETHER THE PETITION FOR DIVORCE IS MAINTAINABLE OR

NOT?

WHETHER THE PRTITIONER IS ENTITLED FOR DIVORCE UNDER

CRUELTY?

WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO

PETITIONER?

PRAYER-…………………………………………………………………….23

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 MEMORIAL ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

ART Article

CO Company

Govt Government

HC High court

SC Supreme court

SCC Supreme court cases

Hon’ble Honourable

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 MEMORIAL ON BEHALF OF PETITIONER

vs. Versus

Ors. Others

UP Uttar Pradesh

U/A Under article

U/S Under section

UOI Union of India

Anr Another

ILR Indian law reports

CO Company

Mfg Manufacturing

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INDEX OF AUTHORITES
STATUTES

1. HINDU MARRIAGE ACT, 1955

2. FAMILY COURTS ACT
3. HINDU MINORITY AND GUARDIANSHIP ACT, 1956
4. THE INDIAN MAJORITY ACT, 1875
5. THE GUARDIANS AND WARDS ACT, 1890
6. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
7. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007

BOOKS REFERED
1. EBC (Eastern Book Company), Law Relating to Women and Children (2018)
2. Paras Diwan, Family Law in India (2020)
3. Prof. M.P. Jain, Family Law Lectures (2020)

WEBSITES REFERED
https://www.legalserviceindia.com
https://www.childrightsindia.org
www.indiankanoon.org

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 MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CASES

1. A. Jayachandra v. Aneel Kaur (2005)

2. A. Jayachandra v. Aneel Kaur, 2000

3. Arnesh Kumar v. State of Bihar (2014)

4. A. Jayachandra v. Aneel Kaur, 1999

5. Durga Prasanna Tripathy v. Arundhati Tripathy, 2002

6. Raj Malik Vs. Sumita Malik (AIR 1986 SC 558)

7. Feroze Begum v Muhammad Hussain, 1983 SCMR 606

8. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

9. Kushi Muhammad v Bashiran, 1981 CLC 84

10.Mrs. Marina Pushond v Derick Puhond, PLD 1974 Lah 385

11.Naval Kishore Sehgal v. Gurbachan Sehgal, 2000

12.Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008)

13.Nil Ratan Kundu and another vs. Abhijit Kundu, (2008) 9 SCC 413

14.Shobha Rani v. Madhukar Reddi (1988)

15.Shobha Rani v. Madhukar Reddi, 2013

16.Savitri Pandey v. Prem Chandra Pandey

17.Section 498A of the Indian Penal Code (IPC)

18.Sushil Kumar Sharma v. Union of India (2005)

19.Smt. Surjeet Kaur v. Harbax Singh Kalha (2000)

20.Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others,
(2019) 7 SCC 42.

21.V. Bhagat v. D. Bhagat, 1997

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble family court of Palakkad by invoking section 71
Family Courts Act,1984 which states that a family court has and can exercise all the jurisdiction
exercised by the district court of subordinate civil court, corresponding to any law for the time
being in force provided that the disputes are of the nature specified in the explanation.

1
Section 7 in the Family Courts Act, 1984
Jurisdiction -
(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 time being in force in respect of 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 circumstances 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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 MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS

Anish and Ritu married each other on 15th January, 2021 according to Hindu rituals. Thereafter
they resided in the matrimonial home along with parents of Anish. Anish's mother was having
very orthodox approach towards life. She always wanted that her son Anish must have a son
for sacramental reasons. The couple had to unwillingly conceive a child. Ritu went to her
parent's place to delivery of the child as per the instructions of her mother-in-law. Ritu
delivered a baby girl on 15 July 2022 due to which there arose a lot of difference between Ritu
and her mother-in-law.
Anish's mother continuously passed insulting marks upon Ritu for the baby girl as she always
wanted a grandson. She also threatened her that if she will not bear a boy for their family, she
will remarry her son to another girl. Anish also used to fight with his own mother that he is
satisfied with birth of the girl. Ritu started persuading her husband to start living separately, to
which, Anish never agreed. It led to a lot of disputes between the couple and he started drinking
and abusing her at times. Their relationship started taking an ugly turn. One day she again
requested him to move to another house in order to improve their relationship, to which he
bluntly refused. Frustrated, Ritu decided to leave the matrimonial house along with her minor
daughter and returned to her parent's house on 18th October 2023.Then finally she filed a
petition before the court seeking divorce under cruelty and the custody of their child as she
feels her child is not safe with her husband as he resides with his parents.

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ISSUES RAISED

1. WHETHER THE PETITION FOR DIVORCE IS MAINTAINABLE

OR NOT?

2. WHETHER THE PETITIONER IS ENTITLED FOR DIVORCE

UNDER CRUELTY?

3. WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO

PETITIONER?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PETITION FOR DIVORCE IS MAINTAINABLE OR

NOT?

The divorce petition submitted before the Hon'ble Court is maintainable. The Hindu Marriage
Act, 1955 allows either the husband or wife to seek divorce on the ground of cruelty. Cruelty
is broadly defined as any conduct that would cause reasonable apprehension in the mind of the
petitioner that it is harmful or injurious to live with the respondent. Thus, here the petitioner
has undergone severe cruelty both from husband and his near relatives.

ISSUE 2: WHETHER THE PETITIONER IS ENTITLED FOR DIVORCE UNDER

CRUELTY?

The counsel for petitioner most reverently submits before this court that Ritu can seek divorce
in India on the ground of cruelty under section 13(1) (ia) of Hindu Marriage Act, abusive
behaviour under domestic violence laws, Anish's refusal to cohabit aligning with the Hindu
Marriage Act, coercive environment due to unwilling conception and gender bias. The
matrimonial bond is irretrievably broken down, not being alive anymore and the petitioner is
also entitled to severe cruelty by the husband and their relatives. In order to protect the sanctity
of marriage, to reduce the number of unhappy marriages and to let the couple live peacefully
for the rest of their lives without any further mental and physical agony, it is necessary to
dissolve such a marriage and thus, the case at hand as well.

ISSUE 3: WHETHER SOLE LEGAL CUSTODY CAN BE GRANTED TO

PETITIONER?

The counsel of the petitioner seeks sole legal custody of the minor child born to the petitioner,
as petitioner is the primary caretaker since birth, shares a deep emotional bond with the child,
which is fundamental to the child's development. Concerns regarding the respondent's fitness
arise from his abusive behaviour, including alcohol abuse and verbal insults towards Ritu,
indicating his inability to prioritize the child's welfare. The hostile environment in the
matrimonial home, exacerbated by insults and threats from the respondent's mother, further
endangers the child's well-being. Granting joint legal custody to the respondent may expose
the child to additional harm. Therefore, it is imperative to grant sole legal custody to Ritu to
ensure that decisions concerning the child's upbringing are made in a supportive and stable
environment, prioritizing the child's welfare above all else. Precedent cases emphasizing the
paramount importance of the child's welfare in custody matters lend further support to Ritu's
request for sole legal custody.

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ARGUMENT ADVANCED
ISSUE 1:

GOPIKA T R

1. WHETHER THE PETITION FOR DIVORCE IS MAINTAINABLE OR

NOT?

It is humbly submitted before the Hon’ble Court that the presented petition filed before the
Court is maintainable on the ground of cruelty. Here the respondent is responsible for the
allegation stated by the petitioner. The petitioner is frequently subjected to mental and physical
cruelty by the respondent and his parents only due to giving birth to a baby girl, leading to a
strained relationship.

Cruelty can be both physical and mental depending upon the circumstances
and many other factors such as education, social background, the sensitivity of individual
victim. What amounts to cruelty is a question of fact. The main intention behind all these acts
is to safeguard a woman’s dignity in her matrimonial home. Matrimonial relationships between
the wife with her husband and her in-laws, their different cultures, state of health and their daily
interactions determine cruelty.

Cruelty under Section 13(1) (ia) of the Hindu Marriage Act talks about the
behaviour of one spouse towards the other which results in a reasonable apprehension in the
mind of the latter that it is not safe for him or her to continue to stay in the matrimonial
relationship anymore with the other. In the case Raj Malik Vs. Sumita Malik (AIR 1986 SC
558) 2establishes that persistent demands for a male child can contribute to the cruelty endured
by wife. Thus, the petition for divorce is maintainable.

2
Raj Malik Vs. Sumita Malik (AIR 1986 SC 558)

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ISSUE 2:

GOPIKA T R

1. WHETHER THE PETITIONER IS ENTITLED FOR

DIVORCE UNDER CRUELTY

Marriage, an institution revered for the promise of companionship and shared

dreams, sometimes finds itself shadowed by the specter of cruelty, disrupting the harmony
it is meant to encapsulate. In the matter before this Hon'ble Court, we present the plaintive
narrative of [Petitioner's Name], whose matrimonial voyage was marred by acts that
transcend the boundaries of emotional resilience.

Cruelty, as a legal ground for seeking dissolution of marital bonds, encompasses a

spectrum of actions and behaviors that inflict severe mental or physical suffering upon a
spouse. It transcends the boundaries of domestic tranquility, leaving an indelible mark on
the psyche of the aggrieved party.

The legal landscape surrounding cruelty within the framework of marriage is shaped
by both statutory provisions and nuanced judicial interpretations. Section 13(1)(i)(a) of the
Hindu Marriage Act, 1955, provides a statutory basis for seeking divorce on grounds of
cruelty. However, it is the judiciary's role to distill the essence of cruelty from the intricate
tapestry of matrimonial discord.

In the annals of legal precedence, pivotal cases have illuminated the contours of
cruelty within matrimonial relationships. In A. Jayachandra v. Aneel Kaur (2005) 3, the
Supreme Court elucidated that cruelty must be of such a nature that it makes it impossible
for the injured party to live with the other spouse. This judgment underscores the gravity of
cruelty as a ground for seeking legal separation.

Similarly, in Shobha Rani v. Madhukar Reddi (1988) 4, the court emphasized that
cruelty may be mental or physical and that it should be of such a nature as to render the
continued cohabitation of the parties intolerable. These legal benchmarks guide the
assessment of cruelty, ensuring a judicious evaluation of the mental and emotional toll
inflicted upon the petitioner.

As we navigate through the intricacies of this case, we beseech this Hon'ble Court to
scrutinize the evidence and discern the threads of cruelty woven into the fabric of
[Petitioner's Name]'s marital life. It is our earnest plea that justice be meted out with a
compassionate understanding of the profound impact such cruelty can have on the sanctity
of matrimony.

3
A. Jayachandra v. Aneel Kaur (2005)
4
Shobha Rani v. Madhukar Reddi (1988)

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2.1 CONCEPT OF CRUELTY

Cruelty is defined as a conduct that causes such mental suffering or physical pain that it
endangers the life, limb, or health of the petitioner or makes it possible for the petitioner to
carry on living with therespondent.5
Physical Cruelty:
Physical cruelty refers to any act or conduct that causes bodily harm or poses a threat to the
life, limb, or health of one spouse by the other spouse. It includes physical violence,
assault, or any other form ofharmful behaviour that endangers the physical well-being
of the victim. In cases of physical cruelty, aspouse can file for divorce or seek legal
protection.
Mental Cruelty:
Mental cruelty refers to the infliction of emotional or psychological distress on one spouse
by the other spouse. It includes behaviour or conduct that is of such a nature that it makes it
impossible for the victim spouse to live with the other spouse. Mental cruelty can take
various forms, such as constant humiliation, verbal abuse, harassment, neglect, threats, or
persistent indifference towards the well- being of the other spouse.
The concept of mental cruelty is subjective and depends on the facts and circumstances of
each case. There is no exhaustive list of acts or behaviors that constitute mental cruelty, as
it can vary based on individual experiences and cultural contexts. However, some common
examples of mental cruelty recognized in Hindu matrimonial law include
1. Verbal abuse and humiliation: Persistent use of derogatory language, insults, or constant
berating of the spouse.
2. Threats and intimidation: Regularly subjecting the spouse to threats of physical
harm, emotionalblackmail, or other forms of intimidation.
3. Emotional abandonment: Neglecting the emotional needs of the spouse, showing
complete indifference,or engaging in emotional detachment.
4. Harassment and stalking: Stalking, monitoring, or excessive surveillance of the spouse,
causing fear anddistress.
5. Constant criticism and ridicule: Regularly belittling or mocking the spouse's abilities,
appearance, orcharacter.
6. Social isolation: Deliberately isolating the spouse from family, friends, or social
support networks,leading to feelings of loneliness and exclusion.
7. Unreasonable demands and control: Exerting excessive control over the spouse's
actions, decisions, orfreedom, leading to a loss of individuality and autonomy.
8. Denial of basic rights and amenities: Withholding financial support, denying access to
basic amenities,or intentionally causing living conditions that are detrimental to the
spouse's well-being.

The expression "cruelty" has been used in relation to human conduct in respect of
matrimonial duties and obligations. Cruelty is the course of intentional or unintentional
conduct of one spouse, adversely affecting the other spouse. Cruelty may be physical,
corporal, or mental. In physical cruelty there can be tangible and direct evidence, but in the
case of mental cruelty there may not at the same time be direct evidence. Courts are required
to probe into the mental process and mental effect of such incidents that are brought out in
evidence6

5
Section 13(1)(a)
6
Prof. kusum, Family law 1Lexis Nexis, Gurgaon, p.62

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2.2 THAT THE CONDUCT OF THE RESPONDENT AMOUNT TO

MENTAL CRUELTY

Definition of Mental Cruelty:

The legal framework, as embodied in Section 13(1)(i)(a) of the Hindu Marriage Act,
recognizes mental cruelty as a justifiable ground for seeking the dissolution of marital ties.
Mental cruelty encompasses acts and conduct that cause such grave emotional distress and
pain that living together becomes unbearable for the aggrieved party.

2.2.1 Continuous Insults and Emotional Distress:

In the present case, the conduct of the respondent, Anish, is characterized by a

pattern of continuous insults and emotional distress inflicted upon the petitioner, Rithu. The
derogatory remarks and insults from [Anish's Mother], coupled with threats, have created an
oppressive atmosphere, eroding the mental well-being of the petitioner.
In the landmark judgment of A. Jayachandra v. Aneel Kaur, 7 the Supreme Court
emphasized that mental cruelty must be of such a nature that it makes it impossible for the
injured party to live with the other spouse. The continuous insults and derogatory remarks,
as witnessed in this case, align with the precedent set by this judgment, illustrating the
gravity of mental cruelty.

2.2.2 Threat of Remarriage Based on Child's Gender:

The explicit threat by the respondent's mother to remarry [Anish] if a male child is
not born introduces an additional layer of mental cruelty. This gender-based condition
creates an environment of fear and anxiety for the petitioner, exacerbating the emotional
distress already experienced.
In the case of Shobha Rani v. Madhukar Reddi8, the court emphasized that cruelty
may be mental or physical and should be of such a nature as to render the continued
cohabitation intolerable. The gender-based threat in the present case adds a dimension to the
mental cruelty that aligns with the principles established in this judgment.

2.2.3. Refusal to Address Marital Strife:

Another facet of mental cruelty is reflected in the respondent's, [Anish's], persistent

refusal to acknowledge or address the strained marital relationship. Despite the petitioner's
earnest pleas for a separate residence to alleviate the ongoing disputes, [Anish] has remained
indifferent to the petitioner's emotional distress.
In the case of V. Bhagat v. D. Bhagat,9 the court highlighted that the refusal to share
the household amounts to cruelty. This decision underlines the significance of addressing
marital issues and cooperating in resolving disputes. The respondent's lack of willingness to
consider a separate residence aligns with the principles enunciated in this case.

7
A. Jayachandra v. Aneel Kaur, 2000
8
Shobha Rani v. Madhukar Reddi, 2013
9
V. Bhagat v. D. Bhagat, 1997

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2.2.4.Impact on Mental and Emotional Well-being:

The collective impact of continuous insults, gender-based threats, and the refusal to
address marital strife has led to a deleterious effect on the petitioner's mental and emotional
well-being. The sustained mental cruelty, as evidenced in this case, has reached a threshold
where continued cohabitation has become untenable.

In the case of Durga Prasanna Tripathy v. Arundhati Tripathy10, the court emphasized
that mental cruelty is to be determined considering the impact of the conduct on the mental
health of the petitioner. The petitioner's plea in the present case aligns with the rationale
established in this judgment.

2.3 THAT THE CONDUCT OF THE RESPONDENT DOES NOT

COMES UNDER ORDINARY WEAR AND TEAR OF FAMILY LIFE,
BUT A CLEAR CASE OF CRUELTY
Cruelty cannot be judged based on hypersensitivity/oversensitivity of the
appellant. The conduct of the respondent must be examined and investigated. It is important
that cruelty must be distinguished from ordinary wear and tear of family life. To constitute
cruelty, the conduct complained of should be “grave and weighty” to conclude that the
petitioner spouse cannot be expected to live with the spouse. It must be something more
serious than “ordinary wear and tear of married life.” The conduct taken into consideration
the circumstances and background must be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the matrimonial law. It is difficult to lay down
a precise definition or to give exhaustive description of the circumstances, which would
constitute cruelty.

Naval Kishore Sehgal v. Gurbachan Sehgal11,it was held that "the instances given by
him (Appellant Husband) are nothing but normal wear-tear in a matrimonial life which
cannot constitute mental cruelty grave and weighty enough to dissolve the marriage."

In the case A. Jayachandra v. Aneel Kaur12 it was held that Cruelty is something more than
ordinary wear and tear of married life to constitute cruelty, the conduct complained of should
be ‘grave and weighty’ to conclude that the petitioner spouse cannot be reasonably expected
to live with the other spouse. It must be something more serious than ‘ordinary wear and tear
of married life.’ The conduct, taking into consideration the circumstances and background
must be examined to reach the conclusion whether the conduct complained of amounts to
cruelty in the matrimonial law.

10
Durga Prasanna Tripathy v. Arundhati Tripathy, 2002
11
Naval Kishore Sehgal v. Gurbachan Sehgal, 2000
12
A. Jayachandra v. Aneel Kaur, 1999

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In the case, Savitri Pandey v. Prem Chandra Pandey 13

The facts of the case are that the appellant Savitri Pandey approached the matrimonial court
praying for dissolution of marriage alleging Cruelty and Desertion as a ground for divorce
against her husband The allegations made under the petition were denied by the respondent.
It is settled rule in law that cohabitation by the parties is an essential of valid marriage and
there can be no desertion without prior cohabitation of the parties. In the present case the
appellant herself had admitted that there had not been cohabitation after the marriage
between the parties. The term ‘Cruelty’ is not defined under the Hindu Marriage Act (HMA).
But in the present case there is no evidence shown by the appellant to prove that any type of
injury or cruelty has been suffered by the appellant which is caused by the respondent. But
even if the allegations made by the appellant are proved they cannot be termed as cruelty, it
would only show the over-sensitiveness of the appellant. The court would term the conduct
of the respondent as ordinary wear and tear of family life and not cruelty. There is a
difference between the two. The term ‘cruelty’ must be distinguished from the ordinary wear
and tear of family life.

2.4 SECTION 498A OF IPC IS VIOLATED

VIOLATION OF SECTION 498A OF IPC:

Definition of Offense under Section 498A:

- Section 498A of the Indian Penal Code (IPC)14 addresses the criminal offense of
subjecting a married woman to cruelty by her husband or his relatives. Cruelty in this context
encompasses both physical and mental aspects, recognizing the vulnerable position of
married women within the familial structure.
The conduct of the respondent's mother, as outlined in the facts, aligns with the provisions of
Section 498A. The continuous insults, derogatory remarks, and explicit threats directed at
Rithu, constitute acts of cruelty falling within the ambit of this legal provision.

In Sushil Kumar Sharma v. Union of India (2005) 15 , underscores the importance of Section
498A in addressing cruelty against married women. While acknowledging instances of
misuse, the Supreme Court emphasized the necessity of a careful examination of evidence.
This case establishes the substantive role Section 498A plays in protecting women from
domestic abuse.

In Arnesh Kumar v. State of Bihar (2014),16 the Supreme Court addressed concerns about
arbitrary arrests under Section 498A. The court stressed the importance of a fair and balanced
application of the law, cautioning against indiscriminate arrests. This case underscores the
need for a thorough and impartial investigation in matters involving Section 498A.

13
Savitri Pandey v. Prem Chandra Pandey
14 Section 498A of the Indian Penal Code (IPC)
15 Sushil Kumar Sharma v. Union of India (2005)

16 Arnesh Kumar v. State of Bihar (2014)

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 MEMORIAL ON BEHALF OF PETITIONER

Section 498A as a Shield for Women:

- Section 498A serves as a protective shield for married women, acknowledging their
vulnerability to harassment within the marital setup. It is designed to deter and penalize acts
of cruelty, ensuring the safety and well-being of married women.

- The circumstances presented in the case at hand, including continuous insults, emotional
distress, and gender-based threats, provide a compelling basis for invoking Section 498A.
The petitioner's plea under this section warrants a comprehensive investigation to ascertain
the veracity of the allegations and uphold the legislative intent behind Section 498A.

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ISSUE 3:
WHETHER THE SOLE LEGAL CUSTODY CAN BE GRANTED TO
PETITIONER?
The counsel of the petitioner humbly submits before the honourable court that the sole legal
custody of the child if given to respondent would not serve best interest and welfare of the
child.
3.1 ‘BEST INTEREST OF THE CHILD’ TO BE CONSIDERED
The concept of the best interests of the child comes from the United Nations Convention on the
Rights of the Child (UNCRC)17: “In all actions concerning children, whether undertaken by
public or private social welfare institutions, a court of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration.” The ‘best
interests of the child’ is a legal test that determines what is best for the child's physical,
psychological, and emotional safety, security, and well-being. The Convention on the Rights
of the Child states that the best interests of the child should be the primary consideration in all
actions concerning children. A significant judgment was passed in the petition of Gita Hariharan18, it
was held that the mother is also the natural guardian of her minor children.

3.1.1 Primary Caretaker and Bond with the Child:

The petitioner has been the primary caregiver for the minor child since birth, providing
unwavering love, care, and support. The bond between petitioner and the child is profound,
nurtured by countless hours of devotion and attention, forming the cornerstone of the child's
emotional well-being.
3.1.2 Concerns Regarding the Respondent's Fitness:
Grave concerns arise regarding the respondent's fitness to make decisions in the child's best
interests. The respondent has exhibited a pattern of abusive behaviour towards petitioner,
including instances of alcohol abuse and verbal insults, manifesting a disregard for the sanctity
of the matrimonial union and, more importantly, the welfare of the child . Supreme Court held
that a parent's conduct, including instances of cruelty or abuse, can be considered in custody
matters. It emphasized that the safety and well-being of the child should be the primary concern
when making custody decisions19.
3.1.3 Hostile Environment and Lack of Support:
The matrimonial home, where the respondent resides with his parents, is marred by hostility
and conflict, with petitioner subjected to continuous insults and threats from the respondent's
mother. Such a toxic environment is unequivocally detrimental to the child's emotional and
psychological development, necessitating a protective intervention by this Honourable Court.

17
Article 3(1), UNCRC.
18
Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
19
Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008)

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3.1.4 Risk of Harm to the Child:

Granting joint legal custody to the respondent poses an imminent risk of harm to the child,
given the respondent's abusive tendencies and the hostile atmosphere prevailing in the
matrimonial home. The paramount concern of this court must be the child's safety and well-
being, which can only be ensured through a grant of sole legal custody to petitioner.

3.1.5 Best Interests of the Child:

It is axiomatic that the best interests of the child must guide this court's deliberations. Granting
sole legal custody to Ritu will guarantee that decisions pertaining to the child's upbringing are
made in an environment of love, stability, and nurturing care, free from the shadow of abuse
and hostility.
Supreme Court reiterated that the interests and welfare of the child should be the primary
consideration in custody matters, emphasizing that custody arrangements should be made
based on the child's best interests rather than the rights of the parents20.
Therefore, in the assessment of “the best interest of the child” the child´s view, identity,
situation of vulnerability, right to health, right to education, the preservation of the family
environment and maintaining of relations have to be considered.

3.1.6 CONSIDERING THE ‘CHILD’S VIEW’:

Child in the present case is said to be in her vulnerable stage and she is need of a motherly
care and protection. Right to the health of child would be at stake without the presence of
mother. As the facts states mother-in-law had an orthodox approach on conceiving a boy,
preservation and maintenance of the family environment would be at risk on to the child.
Therefore, the petitioner counsel humbly submits that the ‘best interest of the child’ would
be served on custody given to petitioner.

20
Smt. Surjeet Kaur v. Harbax Singh Kalha (2000)

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 MEMORIAL ON BEHALF OF PETITIONER

3.2 HINDU LAWS COVERED UNDER THE HINDU MINORITY AND

GUARDIANSHIP ACT 1956
The Hindu laws regarding the guardianship are covered under the Hindu Minority and
Guardianship Act 1956, which is similar to the Guardians and Wards Act 1890. Here, the
custody of a child who is below five years old is given to the mother, while a child above nine
years of age can be consulted by the court regarding his preference for the parent he wants to
stay with. For older boys, typically fathers are made the custodians and for older girls, mothers
are chosen custodians by the court though there is no law mandating this. In the case Marina
Pushond vs. Derick Puhond, the court observed that Section 17 (4) of the Guardians and Wards
Act, 1890 requires that rights of control of a female child should preferably be given to mother
without any limitation of any age 21.

As per law, there are various types of custodies granted to parents, which can include the
following:

Physical custody: This implies that one of the parents acts as a primary guardian and the child
stays with him, while the other parent is granted visitation rights and can meet and spend time
with the child.

Joint custody: Here both the parents get the child’s custody in rotation. This implies that the
child stays with each parent for a fixed duration. Granting joint legal custody to the respondent
poses an imminent risk of harm to the child, given the respondent's abusive tendencies and the
hostile atmosphere prevailing in the matrimonial home.

Legal custody: This means that one or both the parents get the right to take all major life
decisions for the child, including those for his education, finances, religious preferences or
medical needs, till he turns 18.

Sole custody: If one parent is considered unfit to take care of the child, the other parent is given
full custody of the child.

21
Mrs. Marina Pushond v Derick Puhond, PLD 1974 Lah 385 The sub-section has since been omitted by the
Federal Laws (Revision and Declaration) ordinance XXVII of 1981. the Courts however continue to apply the
principle of giving a mother preference in custody of female minors

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 MEMORIAL ON BEHALF OF PETITIONER

3.2.1 Determining Factors for Sole Legal Custody:

In India, as in many other jurisdictions, the paramount consideration in child custody matters
is the best interests of the child. Courts consider various factors to determine whether sole legal
custody is appropriate, including the child's age, the ability of each parent to provide for the
child's needs, the child's relationship with each parent, any history of abuse or neglect, and the
stability of the home environment.

If one parent can demonstrate that granting sole legal custody is necessary to protect the child's
well-being and ensure their best interests are served, the court may be inclined to award sole
legal custody.

3.2.2 Application to the case:

In the case provided, petitioner has left the matrimonial home due to abusive behaviour and
feels that her husband is unfit to provide a safe and stable environment for their daughter.

Petitioner seek sole legal custody to ensure that she has the authority to make decisions in the
child's best interests, especially she believes that her husband's behaviour poses a risk to their
daughter's well-being.

Petitioner presents arguments to the court demonstrating why sole legal custody is necessary
for the child's welfare, taking into account factors such as her husband's behaviour, the child's
relationship with each parent, and the ability of each parent to provide for the child's needs.

3.2.3: CHILD WHO IS BELOW FIVE YEARS

Taking custody of a child below the age of five years is a difficult question for the father.
However, father and mother both are natural guardians under the Hindu Minority and
Guardianship Act, 1956. But the mother gets priority over the father for the custody of a child
below five years under Section 6(a) of the Hindu Minority and Guardianship Act 22.

3.2.4 THE PRESUMPTION THAT WELFARE LIES WITH MOTHER:

At the same time, there is the presumption on the part of the court that the welfare of the minor
invariably lies with the mother. It has been held that the mother’s biological relationship with
minors takes precedence over a relationship established through extended custody and care 23.

22
The custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
23
Kushi Muhammad v Bashiran, 1981 CLC 84

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 MEMORIAL ON BEHALF OF PETITIONER

3.2.5 FATHER PROVES UNFIT:

While the law accepts the father as the natural guardian even when the children are in the
custody of the mother, it has been held that a natural or certificated guardian may prove himself
to be an undesirable person unfit for fulfilling the responsibility of guardianship and custody.24

There is no one definition of the factors constituting a serious disqualification for the father.
Definitions have instead been developed through evidence and have included abandonment,
drug addiction and the absence of any female relative of the minor with father.

In selecting proper guardian of a minor, the paramount consideration should be the welfare and
well-being of the child. In selecting a guardian, the court is expected to give due weight to a
child’s ordinary comfort, contentment, health, education, intellectual development and
favourable surroundings was held in Nil Ratan Kundu vs. Abhijit Kundu25.

The welfare of the child has to be determined owing to the facts and circumstances of each case
and the Court cannot take a pedantic approach26.
In the case in hand, the mother stands as an exception to grounds those father can attain custody
of infant as in matrimonial infidelity, cruelty and carelessness towards the child and she has
sufficient financial ground to support the child.

24
Feroze Begum v Muhammad Hussain, 1983 SCMR 606
25
Nil Ratan Kundu and another vs. Abhijit Kundu, (2008) 9 SCC 413
26
Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42.

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 MEMORIAL ON BEHALF OF PETITIONER

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare;
• The present petition is maintainable.
• The petitioner is entitled for divorce on the ground of cruelty.
• The sole legal custody can be granted to petitioner.
The counsel of the petitioner humbly submits this prayer with utmost respect and deference to the
wisdom and authority of this Honorable Court seeking to pass any such order that it deems fit in the
interest of Justice, Equity and Good conscience under law.

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