In the Honble High Court of Karnataka

At Bangalore, India

Writ Petition No: 1005/ 2010

_________________________
________
In the Matter of

Mr S.N.Rakesh Singh Petitioner

Versus

Smt.Reema Singh & Ors Respondent

Respectfully Submitted in the Honble High Court

By the counsels S.Srikanth, Shashank Scindia, Varsha Singh

Choudhary
 - Memorial on Behalf of the Petitioner-

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES..............................................................2- 4

a) Acts/ Statutes........................................................................................... 2
b) Books....................................................................................................... 2
c) Internet Sources........................................................................................ 2
d) List of Cases............................................................................................. 3

2. STATEMENT OF JURISDICTION.................................................... 5

3. SYNOPSIS OF FACTS.......................................................................... 6

4. ISSUES RAISED..................................................................................... 7

5. SUMMARY OF ARGUMENTS............................................................ 8

6. BODY OF ARGUMENTS...............................................................09- 17

7. Prayer ..................................................................................................... 18

INDEX OF AUTHORITIES
 ACTS/STATUTES:

CONSTITUTION OF INDIA, 1950

CODE OF CIVIL PROCEDURE, 1908

GUARDIANS AND WARDS ACT, 1890

HINDU MARRIAGE AND GUARDIANSHIP ACT, 1956

LAWS AND WRITS

BOOK:

JAIN M.P., INDIAN CONSTITUTIONAL LAW, GURGAON, LEXIS

NEXIS BUTTERWORTHS WADHWA NAGPUR, 2010, SIXTH
EDITION

GUARDIANS AND WARDS ACT, LUCKNOW, EASTERN BOOK

COMPANY, 2008, SEVENTH EDITION

SHUKLA V.N., CONSTITUTION OF INDIA, LUCKNOW, EASTERN

BOOK CORPORATION, 2008, ELEVENTH EDITION.

CODE OF CIVIL PROCEDURE NEW DELHI, NATIONAL BOOK

TRUST, REPRINT 2004 EDITION.

INTERNET SITES:

www.judis.nic.in
www.indiankanoon.org
www.manupatra.com
 www.indlaw.com

LIST OF CASES
Narsimha Rao vs.Y.Venkata Lakshmi

Marggarate Maria Pulparampil Nee ... vs Dr. Chacko Pulparampil And Ors

P.N. RAMACHANDRAN Son of P.S.) vs. S.V. ANNAPURNI AMMAL (Wife

of P.N.) AIR 1964 KER 269IYER

Manju Tiwari vs Rajendra Tiwari And Ors

Sheshnath Rawat vs. Mamta Rawat (High Court of Uttarakhand)

KUMAR V JAHGINDAR vs. CHETHANA RAMATHEERTHA

By the counsels S.Srikanth, Shashank Scindia, Varsha Singh

Choudhary

Statement of facts
The petitioner Rakesh originally hails from village Tumbak Bangalore rural
district, and had migrayed to Malaysia in the year 1998.he got married to the
respondent reema at tumbak on 1st march 2001 as per hindu rites after the
marriage both proceeded to kualalumpur, Malaysia on 27th march 2001 from
the wedlock , son Harish was born on 21st June 2007 .The birth of the child
harish was registered with the registrar of births Malaysia. Respondent was
working as a doctor in government hospital in Malaysia. Petitioner asserts that
on 4th February 2010 without the knowledge of the petitioner and her employer,
the respondent left the matrimonial home along with the child (hareesh) and
came to India .She had also brought the jewellery articles and other valuable
items with her. Petitioner asserts that, after making certain enquiries the
respondent along with the child (hareesh) had taken a Malaysian airlines flight
to new delhi after getting visas issued. Petitioner asserts that he tried to contact
the respondent, but after getting no response from the respondent, he applied for
the custody of his minor son being the natural guardian. The high court of
Malaysia held that the petitioner was entitled to the legal guardianship of the
minor child.The order is endorsed by the Ministry of foreign affairs Malaysia.
Petitioners father came to India and moved an application to the senior
superintendent of police Bangalore, seeking his help for the implementation of
the order

Petitioner asserts that, as the custody of the child was not given to him by the
respondent (Reema), as per the said Malaysian order, he himself moved an
application when he came to India.

The other grouse of the petitioner is that the respondent is not even allowing
him to meet his minor son.

ISSUES RAISED

1) Whether the order of a foreign court be enforceable in the Indian court of

law?

2) Whether the father is entitled for the custody of the child?

3) Whether the petitioner has the Writ jurisdiction?

 4) In whose custody interest of minor child Harish would be better served?

By the counsels S.Srikanth, Shashank Scindia, Varsha Singh

Choudhary

SUMMARY ARGUMENTS

The petitioner has taken an ex-parte order and that particular order, wants to be
enforced before the High court of Karnataka seeking for the custody of the
child.
According to section 6 of Hindu Minority and Guardianship Act 1956 it the
father who is the legal and natural guardian and hence the custody of the child is
given to the father of the child

According to section 25 of the guardians and ward act 1890 the custody of the
child shall belong to the father.

The petitioner has complete jurisdiction of the writ petition to be filed at High
court of Karnataka and hence this petition.

The interests of the minor child would be better served by the father who is the
petitioner and thus the care, love and affection is given by the petitioner who is
also the rightful father of the child.

By the counsels S.Srikanth, Shashank Scindia, Varsha Singh

Choudhary

Arguments filed by the Petitioner

The present Writ-Petition filed by the Petitioner, Rakesh Singh begs to file the
above petition seeking for the custody of the child and
1) Whether the order of a foreign court be enforceable in the Indian court of
law?

For this ,the provision of section 13 of CPC.Under Section 13 of the

Code of Civil Procedure 1908 , a foreign judgment is not conclusive as to
any matter thereby directly adjudicated upon between the parties if

(a) it has not been pronounced by a Court of competent jurisdiction

(b) it has not been given on the merits of the case
(c) it is founded on an incorrect view of international law or a refusal to
recognize the law of India in cases in which such law is applicable
(d) the proceedings are opposed to natural justice,
(e) it is obtained by fraud,
(f) it sustains a claim founded on a breach of any law in force in India.

"From the aforesaid discussion the following rule can be deduced for
recognising foreign matrimonial judgment in this country. The
jurisdiction assumed by the foreign court as well as the grounds on
which the relief is granted must be in accordance with the matrimonial
law under which the parties are married. The exceptions to this rule
may be as follows:

(i) where the matrimonial action is filed in the forum where the
respondent is domiciled or habitually and permanently resides
and the relief is granted on a ground available in the
matrimonial law under which the parties are married

(ii) where the respondent voluntarily and effectively submits to the

jurisdiction of the forum as discussed above and contests the
claim which is based on a ground available under the
matrimonial law under which the parties are married
 (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with
the provisions of the matrimonial law of the parties".

The Petitioner has obtained the Ex-parte order which is prounonced by a

competent court of law and hence, this petition should be allowed in the
eyes of law

The petitioner has also searched for the Respondent, and having found no
whereabouts of her, he has applied for the custody of minor child Harish
in High Court of Malaysia

The petitioner has obtained the custody of the child through a competent
court of law, and in this way the petition should be looked up in an
International sense which according to section 13 of the which is also
referred herein as private international law

In that perspective the Supreme Court in the year 1991 in Narsimha Rao
vs.Y.Venkata Lakshmi framed these rules which are reproduced below to
determine whether the Judgement of Foreign Court can be applied in
India in matrimonial dispute.

The jurisdiction assumed by the foreign court as well as the grounds on

which the relief is granted must be in accordance with the matrimonial
law under which the parties are married

Marggarate Maria Pulparampil Nee ... vs Dr. Chacko Pulparampil And Ors
These observations were made in a case where the mother removed the children
who by an order of a New York Court were to be under the control and
jurisdiction of the State of New York, without having obtained the approval of
the New York Court and without having consulted with the father. She went
over to England, ignored a subsequent order passed by the Supreme Court of
New York State to re turn the boys there, and issued an originating summons in
England in July 1965 under which the boys became wards of the Court. On a
motion on notice given by the father, the trial Judge Cross, J. made an order that
the mother deliver the boys forthwith unto the care of the father to whom liberty
was given to take them back to New York. This order was upheld by the Court
of Appeal.

Whether the father is entitled for the custody of the child?

The word guardian in this section is used in a wide sense and not necessarily
means a guardian appointed or declared by the court, but includes a natural
guardian or even a de-facto guardian. There is an appreciable difference
between custody and guardianship, which is mere comprehensive and valuable
right than mere custody. If the father is deprived of the guardianship of the
children, he ceases to have any right to custody. If however, the father continues
to be the guardian and only the custody is given to the mother, he can always
move the court for getting the custody. But father being the natural guardian
both under the Hindu and the mahomedan law, so long as he is alive and has not
been declared unfit or is not otherwise unable to continue as such the mother
cannot claim the custody in guardianship proceedings.
As per the above said law from guardians and wards act 1890 we can further
say that the father is the natural as well as the legal guardian of the minor child
and the respondent has no right on the custody of the child.

The respondent without the knowledge of the petitioner has taken away the
child which also amounts to abduction.

The following are the cases wherein the custody of the child was given to the
father:

P.N. RAMACHANDRAN Son of P.S.) vs. S.V. ANNAPURNI AMMAL (Wife

of P.N.) AIR 1964 KER 269IYER

Mother- petioner

Father- respondent

Both were living together. Petitioner left the father and took the minor child
(girl age 7) with her. Mother returned back and put the daughter in a school.
One day, the respondent came and picked his daughter from school and went to
madras with her. Mother filed a petition and said that child be restored to her.

Judgement was given in favour of the respondent. (FATHER)

Sec 6 of the Guardians and Wards Act applies. (Father is the natural guardian of
the child)
Whether the petitioner Rakesh Singh has the Writ jurisdiction in the High
Court of Karnataka?

According to article 227 of the Indian Constitution, every High court

shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises the jurisdiction

In this case, the petitioner has approached this Honble court with a
petition in the nature of Habeas-Corpus wherein it is alleged that the
Respondent Reema is having the illegal detention of the child and she has
no right of separating the kid, the minor son, (harish) to separate from the
father and in this regard the respondent has malafide intention of keeping
the child in her custody

In this particular case it was held that the custody of the child can be
issued against an individual and the writ of Habeas-Corpus can be easily
issued with the person having the illegal detention of the child
Manju Tiwari vs Rajendra Tiwari And Ors

Habeas Corpus writ petition

The custody of the child must, therefore, be restored to her immediately as the
welfare of the child shall not be served by allowing him to stay with his father.

In whose custody the interest of the minor child Harish would be better served?

The natural guardians of a Hindu, minor, in respect of the minor's person as well
as in respect of the minor's property (excluding his or her undivided interest in
joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the
mother: provided that the custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the

mother, and after her, the father;

(c) in the case of a married girl-the husband;

Provided that no person shall be entitled to act as the natural guardian of a

minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha)

or an ascetic (yati or sanyasi)

Explanation.- In this section, the expressions 'father'

The father as he is a male member, and has the potentiality to get employment
anywhere, we can easily come to conclusion that the interests of the minor child
will be better looked by the father of the child. The welfare of the child is also
mostly important and in a hindu family, as the father is the karta, the head of the
family, the interests would be better looked at, by the father of the child

In this particular cases the interests of the child was looked at and the custody of
the child was granted to the father:

Sheshnath Rawat vs. Mamta Rawat (High Court of Uttarakhand)

Both were married and having 2 children.

Trial court had passed the judgement in favour of mother. Father appealed to the
High Court. High Court summoned the boy to the court. The boy opted to stay
with his father. He was studying in a montessari school. Father was providing
good education to his child which is beneficial to the minor. The court held that
welfare of the minor is of utmost importance. The fathers appeal was upheld
and custody of child was given to the father.

KUMAR V JAHGINDAR vs. CHETHANA RAMATHEERTHA

Mother was divorced but held the custody of the minor child. She later got
married to Anil Kumble. She would take the child with her whenever her
husband went on tours. Child would feel the distance of the father. The Court
directed her to give the custody of the minor child to his father.

Prayer

Wherefore, in the light of the facts stated, arguments advanced and authorities

cited, the respondent, most humbly prays before the Honble court, to be

graciously pleased to hold adjudge and declare that:

A) TO DIRECT THE RESPONDENTS TO HAND OVER THE CUSTODY OF THE MINOR

CHILD HAREESH TO THE PETITIONER IN ACCORDANCE WITH THE JUDGEMENT

OF THEHONBLE HIGH COURT OF MALAYA AT KAULA LUMPUR..

B) TO PASS ANY OTHER ORDER WHICH THE HONBLE COURT MAY
DEEM FIT IN THE LIGHT OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.
By the counsels S.Srikanth, Shashank Scindia, Varsha Singh
Choudhary