DL-167

SAMAR KUMAR BASU NATIONAL MOOT COMPETITION-2023

IN THE HON’BLE SUPREME COURT OF INDIA

Case filed to contest the appeal filed by the appellants challenging the judgment of the
Hon’ble High Court

IN THE MATTER OF

MR. SANJAY BEHTA ……………………..PETITONER

V.

MRS. DIVYA SETH ……………………….RESPONDENT

WITTEN SUBMISSON ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

PRECEDENTS

BOOKS
WEBSITE REFFERED

STATEMENT OF JURIDICTION

STATTEMENT OF FACT
1. Whether a child of tender age of 11 years can take decision upon his
own welfare especially when such decision relates to complex issues of
gender identity?

2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav

for his gender reassignment surgery without consent of Mr. Sanjay
amount to cruelty and acting against welfare of child?

3. Whether actions of Mr. Sanjay not supporting Anubhav in his decision

to undergo gender reassignment surgery can be termed as acting against
the welfare of child?

Prayer
LIST OF ABBREVIATIONS
& And
V. Versus
Ors. Others
Hon’ble Honorable
 LIST OF AUTHORITIES

STATUTES

• The Hindu marriage act, 1955

• The Indian Penal Code, 1860

• Constitution of india,1950

• Indian contract Act 1872

• Indian Majority Act

• Transfer of property Act

• The Hindu Minority and Guardianship Act

WEBSITES REFERRED

www.Indiankanoon.org
www.livelaw.in
www.lexisnexis.com
www.manupatrafast.com
www.scconline.com
www.westlaw.com
 STATEMENT OF JURISDICTION
The Respondent humbly Approach the Hon’ble Supreme Court under Article 133 of The
Indian Constitution.
STATEMENT OF FACTS
1. Mrs. Divya Seth is an Indian lawyer famous for her activism for LGBT+ community . She
is married to another lawyer Mr. Sanjay Behta . Mr. Behta describes himself as a person of
traditional and orthodox thoughts. Both of them used to practice in Allahabad High Court,
Lucknow Bench. Although the couple had extreme opposing views, but they never let their
views to come in between their matrimonial life.

2. In the year 2009, the couple was blessed with a biological boy Anubhav Seth. Anubhav was
not like other boys. He liked to play with dolls instead of cars. In school, he felt more
comfortable in company of girls than that of boys. In the year 2019, when Anubhav was in 6th
standard, some of his classmates started to call him gay. The poor Anubhav didn’t know what
all these meant.

3. Hurt by these constant bullying, Anubhav started to avoid going to school by making one
excuse after another. On 01.08.2019 , He tell their parents all scenarios, by the reason is that
he doesn't go school ,His mother Mrs. Seth quickly came to a conclusion that Anubhav was not
actually a boy but She told him not to worry about it as it was completely normal. However his
father Mr. Sanjay was worried that what his son told him might be sign of a psychological
disorder
He suggested to his wife that they should take Anubhav to a psychologist to understand if there
is something wrong with him. Mrs. Seth however outrightly dismissed the suggestion of his
husband.

4.Mr. Sanjay told this to his wife who got very angry , She accused Sanjay and said that she
was proud of her son and she won’t allow anyone to subject her son to any kind of medical
treatment.
Anubhav also started to feel that he was a woman trapped in a man’s body. He started to watch
documentaries about persons who claimed that they were trapped in wrong gender identity.

5.Anubhav decided that he also wants to undergo sex change operation and become a woman,
His mother quickly agree Mr. Sanjay however was totally against this,said Anubhav was too
young to take such big decisions of his life.also told her that it’s possible that Anubhav was
just confused about his identity, and as he grows up, he might grow out of this confusion. And
if not, then surely, he will become mature enough to take such big decisions about his own life.

6. Mrs. Seth however, again rebuked him and called him homophobic. She told him that she
has had enough and she will decide what’s good for his son and what’s not,On 01.09.2019 the
couple had an ugly fight. Mr. Sanjay told her that she cannot always have take suchbig
decisions of life of their son &
said that he also had a right to decide as to what is right or wrong for their son.

7.Mrs. Seth however said that who has given birth to Anubhav and she has the exclusive right
to take decisions about good or bad about her son also said that it was her mistake that she
married a man with such a bad mentality. The quarrel between the couple grew worse and in
the heat of quarrel, Mr. Sanjay slapped Mrs. Divya. The next morning, Mrs Seth along with
Anubhav left her matrimonial home and went to house of her father. Mr. Sanjay apologized to
her for what had happened and requested her to return back. Mrs. Seth however told him that
she will return with only if he will support her in her decision for Anubhav’s sex change
operation. To this, Mr. Sanjay said that whatever she was doing was against the welfare of
Anubhav and he too had a right to decide as to what is in the best interest of his child. Upon
this, both of them again had a fight and Mr. Sanjay returned to his home.
8.On 20.01.2020, Mrs. Divya took Anubhav to Delhi against wishes and consent of Mr. Sanjay
for gender reassignment surgery. The surgery was successful and Anubhav was now a girl.
Deeply hurt by actions of his wife, Mr. Sanjay Behta filed a petition for divorce on 06.02.2020
on the ground of cruelty & custody and guardianship of Anubhav before the family court,
Lucknow.
The family court vide its common judgment and decree dated 02.03.2021 granted divorce to
Mr. Sanjay on the ground of cruelty & also granted custody of Anubhav to Mr. Sanjay for the
reason that it was in the interest of greater welfare of child. The family court also declared Mr.
Sanjay as Guardian of Anubhav.
9.Mrs. Divya filed an appeal before Hon’ble Allahabad High Court, Lucknow bench. The High
Court vide its judgment and order dated 06.04.2022 set aside the judgement and decree dated
02.03.2021 passed by the family court. The High Court held that supporting her son in his
decision for undergoing sex change operation doesn’t amount to cruelty. Mrs. Seth was also
declared as legal guardian of Anubhav .Aggrieved by the judgment and order dated 06.04.2022
passed by the High Court, Mr. Sanjay filed an appeal before the Hon’ble Supreme Court on
18.04.2022.

ISSUES RAISED

1. Whether a child of tender age of 11 years can take decision upon his own welfare
especially when such decision relates to complex issues of gender identity?
2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery without consent of Mr. Sanjay amount to cruelty and acting
against welfare of child?

3. Whether actions of Mr. Sanjay not supporting Anubhav in his decision to undergo
gender reassignment surgery can be termed as acting against the welfare of child?

SUMMARY OF ARGUMENTS PLEADINGS

1.Whether a child of tender age of 11 years can take decision upon his own welfare
especially when such decision relates to complex issues of gender identity?
It is humbly submitted before the Hon’ble supreme court that a child also has their right and
for his own welfare, he can take decisions for his/ her life. It must be noted that every individual
has their own human rights the present case Anubhav was suffering from social stigma He
himself observed that he is women trapped in man’s body. It must be noted by the court that
observing such a big factor is not possible for immature child Anubhav was suffering from
mental trauma, anxiety, depression ,Hence it is submitted to the court that Anubhav was mature
enough to take decision where her mother supported .

2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav for his gender
reassignment surgery without consent of Mr. Sanjay amount to cruelty and acting
against welfare of child?

It is humbly submitted before the hon’ble court that the action of Mrs. Divya would not be
amount to cruelty as she have done for the walfare of her child with the suggestion of Dr.
Aditya who is one of the best psychologist in India. Therefore it won’t be consider as cruelty.

3. Whether actions of Mr. Sanjay not supporting Anubhav in his decision to undergo
gender reassignment surgery can be termed as acting against the welfare of child?

It was humbly submitted before the court that action of Mr. Sanjay for not supporting Anubhav
in his decision to undergo gender reassignment surgery is termed as acting against the welfare
of child, as he did not want that his child Anubhav should change his biological body,Mrs Seth
was well known that he is not able to find out the male body to becomfortable and that’s why
she was ready for the procedure of the reassignment surgery she was agreed with the particular
decision of Anubhav for the surgery.Therefore Mr. Sanjay is not able understand his child
properly not showing interest in the child gender and what he feels can be said as that he will
purely don’t want his child to change the gender.

ARGUMENTS ADVANCED
Issue 1.
Whether a child of tender age of 11 years can take decision upon his own welfare
especially when such decision relates to complex issues of gender identity?
It is humbly submitted before the Hon’ble supreme court that a child also has their right and
for his own welfare, he can take decisions for his/ her life. It must be noted that every individual
has their own human rights. Rights are vested with every individual, and it is our duty to let
them perform their right. The right to live with freedom is also a human right. In the present
case Anubhav was suffering from social stigma where he was teased by his schoolmates and
classmates in such a situation it was very difficult for him to go outside. On the other hand, if
we observed the facts of the case then we can see that Anubhav was mature enough to make
such a decision because he was able to recognize himself and his gender identity. He himself
observed that he is women trapped in man’s body. It must be noted by the court that observing
such a big factor is not possible for immature child, but Anubhav was aware with this fact even
though he was in the contact with best psychologist of India, who informed Mrs. Divya that
Anubhav is suffering from gender dysphoria. Where it as necessary to take any affirmation for
his disorder it was not only necessary for this disorder but as Anubhav was suffering from
mental trauma, anxiety, depression therefore it was important to take such a big step. On the
other hand, it must be noted that the decision of surgery was not only Anubhav’s decision but
his mother ‘Mrs. Divya’ also supported him in his decision, Mrs. Divya who is well skilled
lawyer and famous for her activism for LGBT community.

In the present case mother of Anubhav takes the decision for the welfare of his child. In the
case of Goverdhan Lal & Ors. V. Gajendra Kumar 1 in this case also it as observed by the
court that it is true that father is natural guardian of a minor child but when it comes to the
welfare of the child as the sole consideration, it would be proper to find out wishes of the child.

Children do not constitute anyone’s property: they are neither the property of their parents nor
even society. They belong only to their own freedom.” The court said that it was still open for
the husband to seek appropriate order about the custody of the child, if he can prove in properly
constituted proceedings that the custody of the child with the mother is against the minor's
welfare. This statement was observed in the case of Dr. Amit Kumar vs Dr. Sonila and others2.

according to much research most children become conscious of the physical differences
between boys and girls around age two

1 AIR 2002 WLC 419

2 AIR 2018 SCC 460
It was important for a child to take such a decision. he was not comfortable. He was subjected
to bullying by his classmate. His classmates used to beat him and tease him. It was not easy for
him to go to school and faced all these drama every day he just knew he didn’t feel right in his
own body and that feeling this way made his life more difficult. He may have had difficulty
making friends or finding mates. There are many reasons why someone may feel they are
transgender, and life may be much happier and more fulfilling if they make the cosmetic
changes to live as the opposite sex. They should have this option. Life is short and why not do
all we can do to live a happy life? There is no age which is appropriate for a child to make a
permanent decision about changing their bodies such as seeking cosmetic hormones or surgery.
The Punjab and Haryana High Court ruled in Preeti v Haryana that children attain
psychological and physiological maturity much prior to the age of majority. The age must be
revised accordingly. It raised the pertinent question of the legal age of the majority and whether
it is in line with modern society and its norms.

Every person has their rights, right to choose gender identity is integral to human’s personality
The Court considered the question “Whether a person born as a female with predominantly
male orientation, or vice versa, has a right to get oneself to be recognized as a member of the
gender of one’s choice, when the person has undergone surgical procedures for change of
physical gender attributes?”. The Court expressed that to choose a his/her sex or gender identity
is integral to a human’s personality, while identifying the same as one of the most basic aspects
of self-determination, dignity and freedom.

It must be noted by the court that right to self-perceived is the fundamental right which is
mentioned in our constitution of India under article 14 & 21. Therefore, it is human right to
choose gender identity and live with dignity and freedom.

In the landmark case of National legal service authority vs union of India, it was observed by
the court that the word ‘dignity’ under article 21 include diversity in self-expression which
allowed a person to lead a dignified life. Therefore, we can say that every person has the right
to live with dignity. Hence, it placed gender identity within the meaning of fundamental right
given under article 21. It must be noted by the court that article 14 of Indian constitution which
talks about right to equality to all persons, here the term all persons was framed with the
intention of gender neutral therefore this right would extend to transgender persons. It must be
noted that transgender persons were subject to extreme discrimination in our society.
Hence it is submitted to the court that Anubhav was mature enough to take decision where her
mother supported in his decision for his welfare.

Issue 2. Whether actions of Mrs. Divya Seth supporting and taking Anubhav for his
gender reassignment surgery without consent of Mr. Sanjay amount to cruelty and acting
against welfare of child?

It was humbly submitted before the hon’ble court that Mrs. Divya Seth and his husband got to
know about their child problem where Mrs. Seth was quite sure that his son is a women trapped
in the men body. For the welfare of her child Mrs. Seth takes the decision to have surgery. It
must be noted by the court that mothers also have the right towards their children and when it
comes to the welfare of a child it becomes necessary for parents to take a decision about child
welfare. According to article 32 of convention of child right: -
“States Parties recognize the right of the child to be protected from economic exploitation and
from performing any work that is likely to be hazardous or to interfere with the child's
education, or to be harmful to the child's health or physical, mental, spiritual, moral or social
development”
It must be noted that parents are not only responsible for the welfare of their child, but state
also have duty to protect any child from any harm which can be mental as well as psychical
therefore decision of surgery was for the welfare of Anubhav and hence it would be consider
as wrong decision. In the case of Gaytri Bajaj v. Jiten Bhalla 3 held that a minor child is
required to be treated in the interest and welfare of the child when it comes to child’s welfare
it is not the parents right which will require while deciding welfare of minor child. In the case
of Rosy Jacob v. Jacob A. Chakra Makkal4 court observed that if father cannot promote and
take decision in the interest of child then he may be refused such guardianship. Therefore, she
was quite agreeing with his child but on the other side Mr. Sanjay who has orthodox thinking
therefore he was not able to understand his child problem and what he is going through,
whereas Mrs. Seth know that his child is not able to survive in the school and thus not able to
adjust in the society, bullied by his fellow mates this made much concern in the mind of Mrs.
Seth as she do not want that his child should suffer with the mental pressure. There was one
more case where court held that in the modern changed social conditions must yield to the

3 AIR 2012 SC 471

4 AIR 1973 SCC 840
considerations of child 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 between
the mother and the father, 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 it was observed in the case of Gaurav Nagpal v. Sumedha Nagpal5. It was also held that
the word ‘welfare’ defined in section 13 of Hindu minority Act 1956 must be construed in
literal meaning and must be widest sense. The moral and ethical welfare of the child must also
weigh on the court as well as its physical being. According to section 6 of Hindu minority and
guardianship Act, 1956 constitutes the father as the 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 held in the case of Surinder Kaur Sandhu v. Harbax Singh Sandhu6
Therefore, supporting the decision of child for his welfare is not amount to cruelty because
mother of Anubhav was also discussing with Dr. Aditiya who is one of the best psychologist
in India and he examined and found that Anubhav is suffering from gender dysphoria, and he
was also subjected to mental depression. Anubhav saw many documentaries and came to the
point that he wants to the reassignment surgery and Mrs. Seth was agreed to it as she want his
child be comfortable in what he feel safe and walk in the society therefore her concern and
emotions does not have any bad intention thus all was said in the good faith and both the
spouse’s disagreed to each-others statement thereby Mrs. Seth done what she feels good for his
child, that what his child wants for this she did not taken consent from her husband as he was
continuously disagreeing, things have been done in good faith so it cannot amount to cruelty
and against welfare of child. In the case of Mamta v. Ashok Jagannath Bharuka7 It was held
that the court must consider the wishes of the child concerned and assess the psychological
impact, all this must be done in addition to ascertaining comparative material welfare. In the
case of Vikram Vir Vohra v. Shalini Bhalla 8 court laid down the principles of equally
applicable under the Guardians and Wards Act, 1890 where it was observed by court that these
principles are equally applicable relating to custody of a growing child. the paramount
consideration of the welfare of the child. Such considerations are never static, nor can they be
squeezed in a straitjacket. Therefore, each case must be dealt with based on its peculiar facts.
Hence it is submitted that the action of Mrs. Seth does not amount to cruelty.

5
AIR 2009 ISSC 42
6
AIR 1984 SCC 689
7 AIR 2005 SCC 452
8 AIR 2010 SCC 409
Issue 3.Whether actions of Mr. Sanjay not supporting Anubhav in his decision to
undergo gender reassignment surgery can be termed as acting against the welfare of
child?

It was humbly submitted before the court that action of Mr. Sanjay for not supporting Anubhav
in his decision to undergo gender reassignment surgery is termed as acting against
the welfare of child, as he did not want that his child Anubhav should change his biological
body, even though he knows that Anubhav is not fit in his body therefore he was trapped in
the wrong body. Mrs Seth was well known that he is not able to find out the male body to be
comfortable and that’s why she was ready for the procedure of the reassignment surgery
where she was with the decision of Anubhav. It is not necessary that father should be the first
guardian always it depends on the child whom he wants to live with and who can take
decision for him, as Mrs Seth was much observed what Anubhav went through and how is
used to be bullied in the school therefore the mental torture was going in his which she
understood and know that Anubhav was trapped in the male body. So, he wants his child not
to suffer more in the society thus she was agreed with the particular decision of Anubhav for
the surgery. It can be said that she was more concern about his child and that was the path
where she has to be disagreed with his husband words.
If we talk about the natural guardian of the child then we can say that mother is the one who
is the natural guardian of a child so when the separation of the husband wife happen the child
is to be kept with the mother and moreover it depends on the child itself and thereby in the
facts it could be observed that Anubhav was more comfortable with his mother as she has
supported the decision which was taken for the reassignment surgery.
In the case of Jijabai Vithalrao Gajre vs Pathakhan the court held that if there is separation
of the father and the mother for any sort of reason then the minor daughter stayed with her
mother or in the guardianship of her mother and this will be determine that the mother is the
natural guardian of the minor therefore with this particular judgement if we relate with the
facts then Anubhav has to stay with her mother because firstly he feels more like to be a girl
than a boy and other when the reassignment surgery was successful child will become
biologically girl that is the major effect on the law which is applied under the section 6 of the
guardianship act. It was well collected a women can take better care of her child its more
relevant when the child is a girl therefore the child will be more comfortable with her mother
to talk about any kind of problem as in any hormonal changes just like that Mrs. Seth is more
eligible to keep the child with her as Anubhav make come very circumstantial changed as the
body need times to adjust in the new form. Therefore Mr. Sanjay is not able understand his
child properly not showing interest in the child gender and what he feels can be said as that he
will purely don’t want his child to change the gender.

PRAYER
Therefore, in the light of the legal precedents and principles cited; provisions applied and
arguments advanced; it is most humbly pleaded before the Hon’ble Court that may this
Hon’ble court be pleased to:
1. To give the custody of child (Anubhav).
2. To held the ground null and void of divorce.
AND / OR
Pass any other order, as it deems fit, in light of justice, equity and good conscience
All of which is most humbly and respectfully submitted