Team Code- GSM-18R

THE 2ND DR. GURJEET SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2018

Before
THE HONOURABLE HIGH COURT OF INDRAPRASTH
AT INDRAPRASTH

[CRIMINAL REVISIONAL JURISDICTION]

C.R.R. No.1095/2017 of 2017

Under section 397 read with 401 of the Code of Criminal Procedure

In the matter of

Amina Begum………………………………………………….…………………..…Petitioner

versus

Md. Sultan…….………………………………………………………………Respondent No. 1

Child Welfare Committee, Bhadrak…………………………………….…....Respondent No. 2

MEMORANDUM FOR THE RESPONDENTS

DRAWN AND FILED BY COUNSEL ON BEHALF OF THE RESPONDENTS
 Memorandum on behalf of the Respondents

TABLE OF CONTENTS

Index of Authorities...................................................................................................................4

Statement of Jurisdiction..........................................................................................................10

Summary of Facts....................................................................................................................11

Issues Raised............................................................................................................................12

Summary of Argument.............................................................................................................13

Arguments Advanced...............................................................................................................15

1. That the Criminal Revision is not maintainable at the High Court of Indraprasth......15
1.1 CWC’s order was an Interlocutory Order..................................................................15

1.2 Scope of Appeal.........................................................................................................15

1.2.1 Doctrine of Exhaustion of Remedies..................................................................16

1.2.2 Appeal to the high court defeats the purpose of the Tribunalisation..................16
1.2.3 The Doctrine of Primary Jurisdiction..................................................................16
2. That the CWC, Bhadrak had the Jurisdiction to entertain the application of Md.
Sultan...................................................................................................................................16
2.1 Territorial Jurisdiction................................................................................................16

2.2 Md. Sultan has the right to approach a legal body.....................................................17

2.2.1 International Covenants......................................................................................17

[Link] International Covenant on Civil and Political Rights..................................17
[Link] The 1951 Convention relating to the status of refugees...............................18
[Link] Universal Declaration of Human Rights......................................................18
2.3 The children are in need of care and protection.........................................................19

2.3.1 Apprehension of danger......................................................................................19

2.3.2 Definition of children in need of care and protection.........................................19
3. That the CWC can pass an order pertaining to ‘interim custody’ of a child considering
the fact that the issue relating to custody of a child can only be decided by a competent
Civil Court............................................................................................................................21
3.1 CWC its powers to entertain cases.............................................................................21

3.2 CWC and its power to grant orders............................................................................21

4. That the CWC while passing the impugned order ought to have considered the
personal laws of the children and the contesting parties......................................................22
4.1 Muslim law of Hizanat..............................................................................................23

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 Memorandum on behalf of the Respondents

4.2 Amina Begum’s right of Hizanat terminates.............................................................23

4.3 Custody comes along with the guardianship..............................................................24

4.4 Paternal grandmother’s right of Hizanat....................................................................25

5. That the CWC while passing the impugned order has not failed to consider the
welfare of the two children, while entrusting their interim Custody to Md. Sultan who has
been implicated in a criminal case.......................................................................................25
5.1 Md. Sultan is a fit person for the interim custody......................................................25

5.1.1 Md. Sultan was not a convict but only an accused.............................................26

[Link] International covenants for equal treatment in courts..................................26
5.2 Welfare of the children is with Md. Sultan................................................................27

5.2.1 Presumption of welfare through guardianship....................................................27

5.2.2 Welfare not only measured materially but emotionally as well..........................28
5.2.3 Wishes of the children is not relevant.................................................................29
5.2.5 Grandparents disliking of Sultan is not relevant.................................................29
5.2.6 Conduct towards wife and family problems is not relevant................................30
5.2.7 Intention to remarriage is not relevant...............................................................30
5.3 Maternal grandparents are not fit...............................................................................30

6. That the CWC while passing the impugned order should not have provided
preferential protection to the rights of the grandparents (who are respectable senior citizens
of Lindia) over the rights of Md. Sultan who has been granted political asylum in the
country.................................................................................................................................31
6.1 Provision of Universal Declaration of Human Rights...............................................31

6.2 Provisions of CRC.....................................................................................................32

6.3 Parental Rights Doctrine............................................................................................32

7. That the CWC while passing the impugned order restraining Md. Sultan from leaving
Lindia with his minor children has disregarded provisions of CRC and other international
covenants that are applicable herein....................................................................................33
7.1 Disregarded Provisions of CRC and other International Covenants:........................33

7.1.1 The provisions of International Covenants could not be disregarded.................33

7.2 Custody could be entrusted even outside Lindia.......................................................34

Prayer.......................................................................................................................................35

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 Memorandum on behalf of the Respondents

INDEX OF AUTHORITIES

1. I . List of CasesAban Loyd Chiles Offshore v. UOI, (2008) 11 SCC 439........................17

2. ABC v. The State (NCT of Delhi), AIR 2015 SC 2569...............................................27
3. Anil Kumar Pradhan v. Madhavi Pradhan, AIR 2016 Ori 6........................................29
4. Annie Besant v. Narayaniah, AIR 1914 PC 41............................................................29
5. Anwar v. State of J&K, ( 1971 ) 3 SCC 104................................................................33
6. Arathi Bandi v. Bandi Jagadrakshaka Rao and Ors  AIR 2014 SC 918................27, 28
7. Atchayaya v. Kosaraju, ILR 1929 Mad. 81.................................................................30
8. Audiappa v. Nallendra, AIR 1916 Mad 605................................................................30
9. Ayyadorai Pillai v. E.H.B David, AIR 1960 Mad 519................................................30
10. B.N Ganguly v. C.H Sarkar, AIR 1961 MP 173..........................................................25
11. Bushara v. Shibinu, AIR 2015 Ker 21.........................................................................24
12. Cartlidge v. Cartlidge,(1862) SW&TR 567.................................................................29
13. Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors ,2000 CriLJ 1473
......................................................................................................................................17
14. Chameli Singh v. State of UP, AIR 1996 SC 1051......................................................17
15. Chapsky v. Wood, 26 Kan. 650, 652 (1881) (Supreme Court of Kansas)...................32
16. Coffin v. United States, 156 U.S. 432 (1895, Supreme Court of United States)........26
17. Deepa Sasikumar v. Sasikumar, AIR 2012 Ker 69......................................................29
18. Delhi High court Legal Service Committee v. UOI, 2015 CriLJ 2054.......................22
19. Dhanwanti Joshi v. Madhau Unde, (1988) 1 SCC 112................................................28
20. Dhola v. State, 1975 CriLJ 1274..................................................................................15
21. Doli Banerjee v. Prabir Banerjee, II (1997) DMC 352................................................26
22. Ettiappa Mudaliar v. T. Subramanian, (1993) I MLJ 333............................................29
23. Ex parte Barnes, 104 Pac. 296 (1909)..........................................................................32
24. Ex parte warner (1792) 4 Bro CC 101.........................................................................30
25. Fatima Bibi v. Pentu Shaeb, AIR 1941 Mad 944.........................................................24
26. Gangarupa v. Pollepalli, AIR 1935 Mad. 568..............................................................30
27. Gaytri Bajaj v. Jiten Bhalla, AIR 2012 SC 541...........................................................27
28. Hasn Bhatt v. G.M. Bhatt, AIR 1961 J&K 5...............................................................23
29. Imambandi v. Mutsaddi, AIR 1918 PC 11...................................................................24
30. In re Curtis, 118 RR 844.............................................................................................30
31. In re Bartled, (1886) 2 Coll. 611..................................................................................30

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 Memorandum on behalf of the Respondents

32. In re Jackson, 164 Kan. 391, 562 So. 2d 1271 (1990) (Supreme Court of Mississippi)
......................................................................................................................................32
33. In re Kailer, 255 Pac. 41, 42 (1927).............................................................................32
34. In Re Mc. Grath, 62 LJ Ch 208....................................................................................28
35. In Re Mst. Hurunnisa Bibee, 27 IC 74.........................................................................25
36. In re Sister Gemma, AIR 1970 Mad 262.....................................................................34
37. In re Spence, (1847) PH 247........................................................................................30
38. Jaswinder Singh v. Surjeet Singh, AIR 2010 (NOC) 425 (P&H)................................31
39. Jitender Arora and Ors. v. Sukriti Arora, AIR 2017 SC 957.......................................27
40. John Vallamattom v. Union of India, AIR 2003 SC 2902...........................................19
41. K Venkat Reddy v. Chinnapa Reddy Vishwanadha, AIR 2009 AP 1.........................29
42. Kaliman v. Ahmedi, AIR 1931 Cal 563.......................................................................26
43. Kubic Darusz v. Union of India 1990 CriLJ 796.........................................................19
44. Liverpool & London SP & I Asson. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512. 17
45. Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864................................................19
46. Mallison v. Malling, (1866) 1 P&D 221......................................................................29
47. Maneka Gandhi v. Union of India and Others, AIR 1978 SC 597..............................33
48. Margaret v. Chacko, AIR 1971 Ker 1..........................................................................34
49. Md. Riazuddin Ahmed v. Ms. Farida Begum, (2007) 3 Gau LR 694..........................23
50. Mohd. Amin v. Ateeka Banu, AIR 1963 J&K 32........................................................23
51. Mohd. Yonus v Shamshad Bano, AIR 1985 All 217...................................................27
52. Mst. Triphati v. Mst. Partapi, 1 IC 465........................................................................26
53. [Link] Jan v. Master Muhammad Afsar Khan, PLT. 1962 Lah 142...............23
54. Mt. Ghuran v. Syed Riaz Ahmad, AIR1935 Oudh 492...............................................23
55. Munira Siddiqi & Anr. v. Mustafa Aleem Siddiqi, MANU/DE/2206/2009................22
56. National Legal Service Authority v. UOI, (2014) 5 SCC 438.....................................17
57. Newby v. Newby, 55 Cal. App. 114 (Court of Appeals of Indiana);..........................32
58. Nithya Anand Raghavan v. State of NCT of Delhi and Ors., AIR 2017 SC 3137......27
59. P. Ayishakkutty v. Abdul Samad, AIR 2005 Ker 68...................................................25
60. Parmeshwari Devi v. State, (1977) 1 SCC 169............................................................15
61. Poolakkal Ayisakutty v. [Link], AIR 2005 Ker 68..............................................30
62. Prateek Gupta v. Shilpi Gupta, 2018 (1) ACR 16........................................................27
63. PUCL v. Union of India, AIR 1997 SC 1203..............................................................19
64. R.v Howes,( 1860) 2 EL&E 332..................................................................................29
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 Memorandum on behalf of the Respondents

65. Rafiq v. Smt. Bashiran, AIR 1963 Raj 239..................................................................24

66. Ram Murti Chopra v. Nagesh Tyagi, (2008) ILR 12 Delhi 169..................................28
67. Reg v. Clarke, (1857) 26 LJ QB 169...........................................................................29
68. Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917 ), (Supreme Court of Iowa)
......................................................................................................................................32
69. Roche v. Roche, 25 Cal. 2d. 141..................................................................................32
70. Ross v. Pick, 86 A.2d 463 (Md. 1952) (Court of Appeals of Maryland).....................32
71. Sakina Begum v. Malka Ara Begum, AIR 1948 All 198............................................23
72. Santhini v. Vijaya Venketesh, 2017 (6) BomCR 315..................................................27
73. Sebati Padhi & Another v. Child Welfare Committee, Cuttack & Others, 2013 CriLJ
3500..............................................................................................................................22
74. Shafin Jahan v. Asokan K.M. and Ors., MANU/SC/0340/2018.................................27
75. Shaleen Kabra v. Shiwani Kabra,  AIR 2012 SC 2467................................................27
76. Shamsher Singh v. Jasbir Kaur, AIR 2012 HP 83......................................................30
77. Sharli Sunitha v. D. Balson, (2007) 1 MLJ 56.............................................................28
78. Siddiq-un-nissa v. Nizamuddin, AIR 1932 All 215.....................................................24
79. State of Punjab v. Devans Modern Breweries, (2004) 11 SCC 26..............................17
80. State v. Billi, AIR 1953 Nag 128.................................................................................20
81. Stout v. Stout, 201 P.2d 637 (1949).............................................................................32
82. Sultan Ahmad v. Sabina Bibi, 1969 All LJ 799...........................................................27
83. Surya Vadanan v. State of Tamil Nadu and Ors,  AIR 2015 SC 2243........................27
84. T. Kochappi v. [Link] , AIR 2006 Mad 330...........................................................30
85. T.N. Godavarman Thirumulpad v. UOI, (2012) 4 SCC 362.......................................17
86. Ulfat Bibi v. Bafati, AIR 1927 All 581........................................................................24
87. United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956, Supreme Court of United
States)...........................................................................................................................16
88. Vellore Citizens Welfare Forum v. Union of India and others, (1996) 5 SCC 647.....33
89. Vishakha and others v. State of Rajasthan, AIR 1997 SC 3011..................................34
90. Vivek Singh v. Romani Singh, AIR 2017 SC 2009.....................................................31
91. Zeenath v. Kadeeja, 2007 CriLJ 600............................................................................20

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 Memorandum on behalf of the Respondents

II. LIST OF BOOKS

 A. A. A. Fyzee, Cases in the Muhammadan Law of India, Pakistan and Bangladesh

(Tahir Mahmood, 2nd Ed., 2005).
 B. R. Verma’s Commentaries on Mohammedan Law (S.I Jafri, A.B Shrivastav, 12th
ed., 2012).
 Black’s Law Dictionary (B.A. Garrner, 9th Edition, 2009).
 R.V Kelkers’s Criminal Procedure (K. N. C. Pillai, 6th ed., 2014).
 D. D. Basu, Criminal Procedure Code 1973 (5th ed., 2014).
 Goldstein, A. Freud and A. J. Solnit, Beyond the Best Interests of the Child (1st ed.,
1973).
 Kusum, Family Law (4th ed., 2015).
 P. Diwan, Law of Adoption Minority Guardianship & Custody (4th ed., 2010).
 R.N. Choudhary’s Law relating to Juvenile Justice in India (SKA Naqvi and S.
Tripathi, 3rd ed.,2011).
 S. A. Ali’s Muhammadan Law (R. S. A. Khan, 7th ed., 2008).
 S.C Sarkar’s, The Code of Criminal Procedure (Sudipto Sarkar, V.R Manohar, 10th
ed.,2014).
 S. Goenka, Immoral Trafficking of Women and Children (1st ed.,2011).

 S. Marks and A. Clapham, International Human Rights Lexicon (1st ed., 2013).
 Sir D. F. Mulla’s Principles of Mahomedan Law (Professor I. A. Khan,22nd ed.,
2017).
 Syed Khalid Rashid’s Muslim Law (V.P. Bhartiya, 5th ed.,2010)
 V. Kumari, The Juvenile Justice (Care and Protection of Children) Act 2015: Critical
Analyses (1st ed., 2017).
 V. Kumari, The Juvenile Justice System in India (2nd ed., 2014).

III. LIST OF STATUTES

 Code of Criminal Procedure, 1973.

 Constitution of India, 1950.
 Guardians and Wards Act, 1890.
 Indian Penal Code, 1860.

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 Memorandum on behalf of the Respondents

 Indian Majority Act, 1875.

 Juvenile Justice (Care and Protection of Children) Act, 2015.

IV. LIST OF INTERNATIONAL TREATIES

CRC Convention on the Rights of the Child, adopted on 20 th November

1989, by the General Assembly of United Nations, came into
force on 2 September 1990, ratified by India on 11 December
1992.
DRC Declaration of the Rights of the Child (1959), drafted by the UN
Commission on Human Rights and adopted by the General
Assembly of the United Nations on 20 November 1959.
ICCPR International Covenant on Civil and Political Rights., adopted on
16th December, 1966 by the General Assembly of the United
Nations, came into force on 23rd March, 1976.
1967 Protocol Protocol Relating to the Status of Refugees, adopted on 4
October 1967.

1951 Refugee Convention Relating to the Status of Refugees, adopted on 28

Convention July 1951.

UDHR United Nations Declaration on Human Rights, adopted on 10th

December, 1948, ratified 16th December, 1948.

VCLT Vienna Convention on the Law of Treaties, adopted on 23 May

1969.

V. ONLINE DATABASE

1. [Link]
2. [Link]
3. [Link]
4. [Link]

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 Memorandum on behalf of the Respondents

VI. REPORTS , JOURNALS AND REVIEWS

 180th Law Commission of India Report, Article 20(3) of the Constitution of India and
the Right to silence, (2002).
 215th Law Commission of India Report, Assessment of statutory framework of
tribunals in India, (2008).
 257th Law Commission of India Report, Reforms in Guardianship and Custody Laws
in India, (2015).
 Clive Lewis, The Exhaustion of Alternative Remedies in Administrative Law,
Cambridge University Press on behalf of Editorial Committee of the Cambridge Law
Journal, (1992).
 Nicholas A. Lucchetti, One hundred years of the doctrine of primary jurisdiction: but
what standard of review is appropriate for it, American Bar Association, (2007).
 Raoul Berger, Exhaustion of Administrative Remedies, The Yale Law Journal, (1939).

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 Memorandum on behalf of the Respondents

STATEMENT OF JURISDICTION

The counsel on behalf of the Respondents have most humbly reached the High Court of
Indarprasth under Section 3971 read along with Section 4012 of the Code of Criminal
Procedure, 1973.

Section 397, CrPC: (1) The High Court or any Sessions Judge may call for and examine the record of any
proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded
or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such
record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that
he be released on bail or on his own bond pending the examination of the record
Explanation. —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of
section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be entertained by the other of them.
2

401. High Court's powers of revision:(1) In the case of any proceeding the record of which has been called
for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of
the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by
section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall
be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had
an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of
conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any
person and the High Court is satisfied that such application was made under the erroneous belief that no appeal
lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application
for revision as a petition of appeal and deal with the same accordingly.

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 Memorandum on behalf of the Respondents

SUMMARY OF FACTS

I.
Md. Sultan, is a citizen of Barloch Province of Pakmulk, he is a member of 'Inquilab’, a non-
violent group which supported the liberation of Barloch people. Govt. of Pakmulk initiated a
counter-insurgency mechanism against Inquilab, which resulted in the death of the father of
Md. Sultan. Md. Sultan and his mother Nazma Begum, escaped the military attack and
received political asylum in Lindia. In 2009, Md. Sultan was granted with an LTV and a
temporary residential house at Mirjapur in District of Bhadrak, Indraprasth. He started
working as a freelance journalist and thus earned well.
II.
Sultan married Shazia on 24th November, 2012 according to Muslim personal laws but it took
almost 2 years for Shazia’s parents to accept the marriage. Meanwhile, Shazia gave birth to a
girl child Ruksar. Md. Sultan was disappointed from the birth of the girl child but in a little
while he became affectionate towards the girl child. Conflict of interest took place when
Shazia insisted Md. Sultan to apply for the citizenship of Lindia, but he dissented as he aimed
for liberation of Barloch. Shazia shifted to her paternal home. There it was discovered that
she had developed acute anaemia and schizophrenia and further medical probe revealed that
she was pregnant. She came back to her house. Despite warnings of doctors, Shazia and
Sultan agreed to move ahead with the pregnancy. After delivery through caesarean surgery
her health became critical and she had to be shifted to AIIMS. Shazia died as she could not
survive the aftermath of pregnancy, Md. Sultan was emotionally shattered. Meanwhile
maternal grandparents asked Nazma Begum to take the two children to their home. After
recovering from the trauma, Md. Sultan went to bring back his two daughters but the
grandparents denied, FIR was filed by Sultan against them for unlawful detention and
kidnapping of the girls. Also the grandparents filed FIR u/s 498-A/304-B/302/120-B against
Md. Sultan alleging that he is responsible for the death of Shazia.
III.
After that Sultan approached the CWC. After hearing the matter on 10/05/2017 CWC passed
an order taking into account various factors which granted the interim custody of the girls to
Md. Sultan, further enquiry was ordered and next hearing was fixed on 22/05/2017.
Aggrieved by this order, Amina Begum filed this criminal revision before this Hon’ble High
Court of Indraprasth on 17/5/2017. Interim stay was put to the impugned order of the CWC.
Final Hearing was scheduled on 21/04/2018.

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 Memorandum on behalf of the Respondents

ISSUES RAISED

JURISDICTION AND MAINTAINABILITY

1. WHETHER THE CRIMINAL REVISION IS MAINTAINABLE IN THE HIGH COURT OF

INDRAPRASTH?

2. WHETHER CWC, BHADRAK HAD JURISDICTION TO ENTERTAIN THE APPLICATION OF

MD. SULTAN?

3. WHETHER CWC CAN PASS ORDER PERTAINING TO 'INTERIM CUSTODY' OF A CHILD

CONSIDERING THE FACT THAT THE ISSUE RELATING TO 'CUSTODY' OF A CHILD CAN

ONLY BE DECIDED BY A COMPETENT CIVIL COURT?

RIGHTS AND DUTIES UNDER THE CONSTITUTION AND INTERNATIONAL COVENANTS

4. WHETHER THE CWC WHILE PASSING THE IMPUGNED ORDER OUGHT TO HAVE

CONSIDERED THE PERSONAL LAWS OF THE CHILDREN AND THE CONTESTING PARTIES?

5. WHETHER THE CWC WHILE PASSING THE IMPUGNED ORDER HAS FAILED TO CONSIDER
THE WELFARE OF THE TWO CHILDREN, WHILE ENTRUSTING THEIR INTERIM CUSTODY

TO MD. SULTAN, WHO HAS BEEN IMPLICATED IN A CRIMINAL CASE FOR BEING

RESPONSIBLE FOR THE DEATH OF THEIR MOTHER?

6. WHETHER THE CWC WHILE PASSING THE IMPUGNED ORDER SHOULD HAVE PROVIDED
PREFERENTIAL PROTECTION TO THE RIGHTS OF THE GRANDPARENTS (WHO ARE

RESPECTABLE SENIOR CITIZENS OF LINDIA) OVER THE RIGHTS OF MD. SULTAN WHO

HAS BEEN GRANTED POLITICAL ASYLUM IN THE COUNTRY?

7. WHETHER THE CWC WHILE PASSING THE IMPUGNED ORDER RESTRAINING MD.
SULTAN FROM LEAVING LINDIA WITH HIS MINOR CHILDREN HAS DISREGARDED

PROVISIONS OF CRC AND OTHER INTERNATIONAL COVENANTS THAT ARE APPLICABLE

HEREIN?

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 Memorandum on behalf of the Respondents

SUMMARY OF ARGUMENT

ISSUE 1: THAT THE CRIMINAL REVISION IS NOT MAINTAINABLE AT THE HIGH COURT OF
INDRAPRASTH.

It is most humbly submitted that the Criminal Revision is not maintainable at the High Court
of Indraprasth by it being of the nature of that an Interlocutory order and thus the scope of
appeal stands depleted. The purpose of establishment of Administrative Tribunals is also
defeated if a Criminal Revision is filed despite the appropriate and specific procedures laid
down in the Juvenile Justice Act thereby rendering this Criminal Revision redundant.

ISSUE 2: THAT THE CWC, BHADRAK HAD THE JURISDICTION TO ENTERTAIN THE

APPLICATION OF MD. SULTAN.

It is most humbly submitted that CWC, Bhadrak had the Jurisdiction to entertain the
application of Md. Sultan as the CWC has the territorial jurisdiction over the matter and Md.
Sultan has a right to approach any legal body conferred by the established laws and
international covenants. The two children were in need of care and protection and the same
could be rendered to them by an appropriate body like the CWC.

ISSUE 3: THAT THE CWC CAN PASS AN ORDER PERTAINING TO ‘INTERIM CUSTODY’ OF A
CHILD.

It is humbly submitted that CWC is a competent body which can pass orders pertaining to
‘Interim Custody’ of a child despite the fact that issues relating to custody of a child can only
be decided by a competent civil court. It is apposite to note that the children in this case are
“Children in need of Care and Protection” as they were in danger as reasonably apprehended
by Md. Sultan and thus CWC can entertain such cases and has powers to pass orders
pertaining to such cases.

ISSUE 4: THAT THE CWC WHILE PASSING THE IMPUGNED ORDER OUGHT TO HAVE

CONSIDERED THE PERSONAL LAWS OF THE CHILDREN AND THE CONTESTING PARTIES.

It is humbly submitted that CWC while passing the impugned order ought to have considered
the personal laws of the children and the contesting parties and rightly so, it did not disregard
any. The personal laws corroborate the order passed by the CWC as the “Welfare of the

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 Memorandum on behalf of the Respondents

Child” is the prime concern of both, keeping in mind the rights of Hizanat and revocation of
the same being regarded likewise.

ISSUE 5: THAT THE CWC HAS NOT FAILED TO CONSIDER THE WELFARE OF THE TWO

CHILDREN, ENTRUSTING THEIR INTERIM CUSTODY TO MD. SULTAN, WHO HAS BEEN

IMPLICATED IN A CRIMINAL CASE.

It is humbly submitted that the CWC while passing the impugned order has not failed to
consider the welfare of the children as their welfare, substantiated by many factors, rightly lie
with Md. Sultan. Md. Sultan has been frivolously implicated in a criminal case for being
responsible for the death of their mother but it is irrelevant as he stands innocent until proven
guilty before the court which must bestow equal treatment in equal circumstances.

ISSUE 6: THAT NO PREFERENTIAL PROTECTION SHOULD HAVE BEEN BESTOWED UPON

THE GRANDPARENTS BY THE CWC, OVER THE RIGHTS OF MD. SULTAN WHO HAS BEEN

GRANTED POLITICAL ASYLUM IN THE COUNTRY.

It is humbly submitted that no preferential protection should be provided to the rights of

grandparents merely because they are citizens of Lindia over the rights of Md. Sultan who
has been granted Political Asylum in the country as the CWC authorities for the care,
protection, treatment, development and rehabilitation of Children in Need of Care and
Protection and cannot bestow upon any party preferential protection when both the parties
stand equal in the eyes of law. Moreover he is the legal guardian of the minors and has
superior rights for custody.

ISSUE 7: THAT THE CWC WHILE PASSING THE IMPUGNED ORDER, RESTRAINING MD.
SULTAN FROM LEAVING LINDIA WITH HIS MINOR CHILDREN DISREGARDED PROVISIONS

OF CRC AND OTHER INTERNATIONAL COVENANTS.

It is humbly submitted that CWC while passing the impugned order restraining Md. Sultan
from leaving Lindia with his minor children has disregarded provisions of CRC and other
international covenants. The protection Liberty extends to all ‘persons’, and not merely
citizens and the restraint was not valid. Md. Sultan has the right to move to his own country
along with his children.

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 Memorandum on behalf of the Respondents

ARGUMENTS ADVANCED

1. THAT THE CRIMINAL REVISION IS NOT MAINTAINABLE AT THE HIGH COURT OF

INDRAPRASTH.

It is humbly contended before the Hon’ble court that the present revision is not maintainable
as there is no illegality or injustice, the CWC has acted properly with its procedures and has
rightly passed the interim custody to Md. Sultan, the respondent no.1 herein, after rightly
appreciating the facts and circumstances.

1.1 CWC’S ORDER WAS AN INTERLOCUTORY ORDER

It may be noted that the order passed by CWC is an interlocutory order also termed as interim
order.3 It is to be noted that the order passed by CWC was of interim custody for safeguard of
the children being in need of care and protection as the children were taken away from the
father without his consent by the grandparents and there was danger to the children. Also the
hearing of CWC in this matter was pending where more investigation was ordered to check
the situation. Before the date of next hearing in the CWC, this revision petition was filed,
thus preventing CWC from coming to a final conclusion.

Subsection 2 of Section 397 of CrPC which bans the exercise of revisional powers in relation
to any interlocutory appeal, inquiry, trial or other proceeding. Interlocutory order is one
which is passed at some intermediate stage of a proceeding generally to advance the cause of
justice for the final determination of the rights between the parties. 4 The nature of the
impugned order is not final and is such that it qualifies in the definition of interlocutory order.
The High Court is expressly barred from entertaining this revision.

1.2 SCOPE OF APPEAL

As the decision taken by the CWC is binding and final on matters related to children in need
of care and protection as the committee is vested with such powers, here is no need for the
High Court to intervene. If at all the petitioners herein were aggrieved they could have
appealed in a children’s court as provided for in Section 101(1)5 of Juvenile Justice Act.

Black’s Law Dictionary,1207 (B.A. Garrner, 9th Edition, 2009).

4

Dhola v. State, 1975 CriLJ 1274; Parmeshwari Devi v. State, (1977) 1 SCC 169.
5

Section 101(1), Juvenile Justice (Care and Protection of Children) Act, 2015: Subject to the provisions of this
Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty

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 Memorandum on behalf of the Respondents

1.2.1 DOCTRINE OF EXHAUSTION OF REMEDIES

The doctrine of exhaustion of remedies6 prevents a litigant from seeking a remedy in a

new court or jurisdiction until all claims or remedies have been exhausted (pursued as fully as
possible) in the original one.7

1.2.2 APPEAL TO THE HIGH COURT DEFEATS THE PURPOSE OF THE TRIBUNALISATION

This revision petition is unnecessary and should not be entertained by this Hon’ble high court
as the fact remains that the very objective behind the establishment of the Administrative
Tribunals, i.e. to reduce the burden of the courts and provide speedy redressal to public is
defeated if all the cases adjudicated by them have to go before the concerned High Courts. If
one appeal is considered to be a must, an intra-tribunal appeal would be the best option.8

1.2.3 THE DOCTRINE OF PRIMARY JURISDICTION

It stands for the idea that courts should allow agencies to decide issues that are either within
the agencies' specialized sphere of knowledge.9 It is not that the agency has jurisdiction
before the court does, but rather, the agency and the court share jurisdiction, and where the
court applies the doctrine, it delays the case pending a decision by the agency or dismisses
and refers the case to the agency.10 The CWC is specialised in determining the welfare of the
children which is the paramount consideration and also who are ‘fit persons’.11

2. THAT THE CWC, BHADRAK HAD THE JURISDICTION TO ENTERTAIN THE APPLICATION OF MD.
SULTAN.

days from the date of such order, prefer an appeal to the Children’s Court, except for decisions by the
Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District
Magistrate.
6

Raoul Berger, Exhaustion of Administrative Remedies, 48, The Yale Law Journal, 981, 982, (1939), available at
[Link] last seen on 24/03/2018.
7

Clive Lewis, The Exhaustion of Alternative Remedies in Administrative Law,51, Cambridge University Press on
behalf of Editorial Committee of the Cambridge Law Journal, 138, 140, (1992), available at
[Link] last seen on 24/03/2018.
8

215th Law Commission of India Report, Assessment of statutory framework of tribunals in India,8, (2008)
available at [Link] last seen on 24/03/2018.
9

United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956, Supreme Court of United States).
10

Nicholas A. Lucchetti, One hundred years of the doctrine of primary jurisdiction: but what standard of review
is appropriate for it, 59, American Bar Association, 849, 855, (2007), available at
[Link] last seen on 10/04/2018.
11

Section 30(iv) Juvenile Justice (Care and Protection of Children) Act, 2015.

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 Memorandum on behalf of the Respondents

2.1 TERRITORIAL JURISDICTION

It is humbly contended before the Hon’ble High Court that the CWC has the jurisdiction and
powers to entertain the case brought up by Md. Sultan. The CWC has the territorial
jurisdiction over Mirzapur and Chandni Chowk both lie in the District of Bhadrak.

2.2 MD. SULTAN HAS THE RIGHT TO APPROACH A LEGAL BODY

Md. Sultan being a foreign national is not prevented from taking legal remedy in the courts of
Lindia. There are several international covenants signed by the Lindia which allows every
person to have legal recourse in Lindian Courts. From the moment of entry of a refugee into
the Indian territory, the laws of India would apply to him/her. 12 All the asylum seekers and
refugees have access to National Legal System.13

2.2.1 INTERNATIONAL COVENANTS

The Supreme Court has repeatedly held that International Treaties and Conventions are
significant for the purpose of interpretation of the Constitution and domestic jurisprudence
and should be read while interpreting domestic law if they are not contrary to domestic law
and that there would be no inconsistency in the use of international norms to the domestic
legislation.14

It is humbly submitted to the High Court that it is well-settled that a statute should be
interpreted in the light of the International Treaties and Conventions even if they are not
signed.15 In Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors16 Court
stated
“The International Covenants and Declarations as adopted by the United Nations have to be
respected by all signatory States and the meaning given to the above words in those

12

T. Ananthachari, Refugees In India: Legal Framework, Law Enforcement And Security, available at :
[Link] last seen on 15/03/2018.
13

Questions and Answers UNHRC, India available at:[Link]

option=com_content&view=article&id=22:questions-and-answers&catid=2:uncategorised&Itemid=141 , last
seen on 09/04/2018.
14

Aban Loyd Chiles Offshore v. UOI, (2008) 11 SCC 439; National Legal Service Authority v. UOI, (2014) 5
SCC 438; T.N. Godavarman Thirumulpad v. UOI, (2012) 4 SCC 362.
15

Chameli Singh v. State of UP, AIR 1996 SC 1051; State of Punjab v. Devans Modern Breweries, (2004) 11
SCC 26; Liverpool & London SP & I Asson. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512.
16

Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors ,2000 CriLJ 1473 ¶24.

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 Memorandum on behalf of the Respondents

Declarations and Covenants have to be such as would help in effective implementation of

those rights. The applicability of the Universal Declaration of Human Rights and the
principles thereof may have to be read, if need be, into the domestic jurisprudence.”

[Link] INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 14 (1) of International covenant on Civil and Political Rights17 states:

“All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law….”
Also, Article 16 of the same covenant says: “Everyone shall have the right to recognition
everywhere as a person before the law.”
The meaning of these articles are quite clear in itself. Lindia is a party to the International
Covenant on Civil and Political Rights and hence it is legally binding on the state to
implement the provisions of the treaties.

[Link] THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

Article 16: Access to Courts-

“1. A refugee shall have free access to the courts of law on the territory of all Contracting
States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the
same treatment as a national in matters pertaining to access to the Courts, including legal
assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other

than that in which he has his habitual residence the treatment granted to a national of the
country of his habitual residence.”

A reading of this section clearly suggests that Md. Sultan who is a refugee in the state of
Lindia has access to courts which are in the jurisdiction of his habitual residence i.e.
Indarprastha. He shall have the same legal treatment as a national of Lindia.

Although Lindia is not a party to the 1951 Refugee Convention or its 1967 Protocol and does
not have a national refugee protection framework. However, it continues to grant asylum to a
large number of refugees from neighbouring States and respects UNHCR’s mandate for other

17

ICCPR available at: [Link] last seen on 15/03/2018.

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 Memorandum on behalf of the Respondents

nationals.18
[Link] UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 6: Everyone has the right to recognition everywhere as a person before the law.

And article 8 states: Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Indian is a party to UDHR, taking into consideration, the above case laws and International
Covenants, it is humbly submitted to the court that legal recourse to international
Conventions are permissible.19

2.3 THE CHILDREN ARE IN NEED OF CARE AND PROTECTION

Two children in the instant matter namely Ruksar and Razia are taken away from the custody
of their father and are not being returned to him upon asking. Maternal grandparents are not
even letting him meet his children which institutes a reasonable apprehension of danger to the
children and they fit in the definition of ‘Children in Need of Care and Protection’

2.3.1 APPREHENSION OF DANGER

It is humbly submitted that the situation is critical keeping in mind the death of Shazia,
mother of the minors concerned, for which the in-laws of Sultan are blaming him. The in
laws have also filed an F.I.R u/s 498-A/304-B/302/120-B against Md. Sultan for the death of
Shazia backed by no valid ground. This is enough evidence that the petitioner is having
grudges over Md. Sultan. The in-laws of Sultan were against this marriage and there were no
signs of them trying to connect with their grandchildren. The conduct of the maternal
grandparents of taking the children away without consent and not returning them back upon
incessant request is dubious. Sultan had apprehension that they might traffic the children or
harm them in some way to avenge the death of their daughter. Thus the children are not safe
in the hands of the maternal grandparents. When Sultan wanted to lodge an FIR for
kidnapping and forceful confinement, political pressure from petitioner’s side initially
restrained from lodging FIR. They didn’t fight for the custody of minors through legal
recourse but took unlawful way. This generates more doubt to which the father took

18

India |Working Envirnoment| available at:[Link] , last seen on 09/04/2018.

19

PUCL v. Union of India, AIR 1997 SC 1203; John Vallamattom v. Union of India, AIR 2003 SC 2902; Madhu
Kishwar v. State of Bihar, AIR 1996 SC 1864; Kubic Darusz v. Union of India 1990 CriLJ 796.

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 Memorandum on behalf of the Respondents

immediate action and reached the authority which is CWC which rightly appreciated the
danger and placed the interim custody of the minors with Md. Sultan.

2.3.2 DEFINITION OF CHILDREN IN NEED OF CARE AND PROTECTION

The definition of ‘Children in Need of Care and Protection’ is given in the section 2 of the
Juvenile Justice Act. Section 2(14) lays down the conditions to come under the purview of
the the children in need of care and protection.
(14) “Child in need of Care and Protection” means a child:

(iii) who resides with a person (whether a guardian of the child or not) and such person—
(a) has injured, exploited, abused or neglected the child or has violated any other law
for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable
likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there
is a reasonable likelihood of the child in question being killed, abused, exploited or
neglected by that person; or
viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose
of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains”

Clause (iii) of the above section mentioned is aimed at precautionary supervision of the
children. It includes children who are living with a person who has either already harmed the
child or presents a reasonable risk of causing harm to such a child. 20 The sub clause (a) states
that if the child resides with a person who has violated any law made for the protection of
children, such children can be restored. Since the maternal grandparents took away the the
children, they have violated the laws. Keeping the child beyond the reach of the person who
is entitled to its custody would amount to wrongful confinement. 21 It was immaterial whether
the girls did or did not consent; they were kept against the will of those who were lawfully
entitled to have charge of her, and this keeping and the refusal to give her up amounted to

20

V. Kumari, The Juvenile Justice (Care and Protection of Children) Act 2015: Critical Analyses,31 (1st ed.,
2017).
21

Zeenath v. Kadeeja, 2007 CriLJ 600.

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 Memorandum on behalf of the Respondents

detention which was unlawful.22 Through placing the custody with Md. Sultan, The CWC has
well appreciated this danger to the children.

The two children concerned are thus under the purview of the definition of “Child in Need of
Care and Protection”. Thus interpreting these sections of Juvenile Justice Act, the CWC has
the jurisdiction to entertain the the application filed by Md. Sultan and pass appropriate
orders for the restoration of the children. Thus, they come under the jurisdiction of the CWC.

3. THAT THE CWC CAN PASS AN ORDER PERTAINING TO ‘INTERIM CUSTODY’ OF A CHILD CONSIDERING
THE FACT THAT THE ISSUE RELATING TO CUSTODY OF A CHILD CAN ONLY BE DECIDED BY A COMPETENT

CIVIL COURT.

It is submitted to the Hon’ble Court that keeping in mind the nature of the issue of custody,
amidst a critical period of time when the unfortunate death of mother has occurred, it was not
safe for the children to be in the custody of their maternal grandparents and the same was
reasonably apprehended by Md. Sultan as discussed in the previous issue.

3.1 CWC ITS POWERS TO ENTERTAIN CASES

The Child Welfare Committees derives its powers through the Juvenile Justice Act. CWCs
have been designated by law as the final district-level body having the authority to dispose of
cases for the care, protection, treatment, development and rehabilitation of children in need of
care and protection.23 The committee has the power to deal exclusively with all proceedings
under the Juvenile Justice Act relating to children in need of care and protection. 24 As the
Children concerned herein are in need of care and protection as discussed in the previous
issue, the CWC has the power to entertain such case.

3.2 CWC AND ITS POWER TO GRANT ORDERS

The committee has its own procedures to conduct inquiry and it is competent to pass
appropriate orders declaring a ‘Child in Need of Care and Protection’ and ‘Fit person’ by
virtue of Sec. 37 of Juvenile Justice Act which enumerates orders that the CWC can pass
after being satisfied through the inquiry.

It is humbly submitted to the Hon’ble court that as the children are in need of care and

22

State v. Billi, AIR 1953 Nag 128.

23

Section 29(1) Juvenile Justice (Care and Protection of Children) Act, 2015.
24

Section 29(2) Juvenile Justice (Care and Protection of Children) Act, 2015.

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 Memorandum on behalf of the Respondents

protection, the committee can restore them to their parents or guardians pursuant to section
40(3) of the Act.

40(3). The Committee shall have the powers to restore any child in need of care and
protection to his parents, guardian or fit person, as the case may be, after determining the
suitability of the parents or guardian or fit person to take care of the child, and give them
suitable directions.

Explanation. —For the purposes of this section, “restoration and protection of a child”
means restoration to—
(a) parents;(b) adoptive parents; (c) foster parents; (d) guardian; or(e) fit person.

The above mentioned sections of the Juvenile Justice Act empowers the CWC to deal with
the cases such as the instant one in which the parent has filed for situation which demands
restoration of children to the parents. It is submitted to the court that Md. Sultan is the parent,
a legal guardian and also a fit person to have the custody of the children concerned.

In the case of Munira Siddiqi25, the Child Welfare Committee passed an interim order and
permitted petitioner to retain the custody over the child. The Delhi High Court found no
illegality or infirmity in the interim custody order of the Child Welfare Committee.

Backing such powers of the CWC, the High Court of Orrisa has held that, “The Child
Welfare Committee does not decide rival claims of custody of a child, though, it has power to
restore the child to a parent or guardian if it considers such restoration to be in the interest
of care and protection of the child.”26

In Delhi High Court Legal Service Committee v. UOI27, it was held that it is only the child
welfare committee which has the final authority in respect of the custody and restoration of a
child victim and a child in need of care and protection.

The CWC having the ambit to restore a child back to his/her parent as described in Sec. 40 of
the Act, empowers the CWC to entrust interim custody of a child to the suited person.

4. THAT THE CWC WHILE PASSING THE IMPUGNED ORDER OUGHT TO HAVE CONSIDERED THE

PERSONAL LAWS OF THE CHILDREN AND THE CONTESTING PARTIES.

25

Munira Siddiqi & Anr. v. Mustafa Aleem Siddiqi, MANU/DE/2206/2009.

26

Sebati Padhi & Another v. Child Welfare Committee, Cuttack & Others, 2013 CriLJ 3500.
27

Delhi High court Legal Service Committee v. UOI, 2015 CriLJ 2054 ¶228.

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 Memorandum on behalf of the Respondents

It is humbly submitted to this Hon’ble High Court that the CWC has discussed the relevance
of Muslim Personal Laws vide order dated 10/05/2017. The right to Hizanat has been
contended by the petitioners for the custody of the children concerned in the CWC too. CWC
has rightly appreciated the benefits of the children while staying with the father. The High
Courts of Allahabad and Jammu and Kashmir have observed that though the rules of
Mohamedan law have to be taken into consideration, the main question to be considered is
what would be conductive to child’s welfare.28

In the case of Hasn Bhatt29 the court opined that, “Although a court should be guided in
appointing a guardian by the personal law of the minor yet the consideration of the welfare
of the minor should be the paramount consideration.”

The CWC is a competent authority to suggest the welfare of the children, hence from the
order it is clear that the CWC is of the opinion that the welfare is in the hands of the father.
The welfare of the children will be discussed at length in the later issues.

4.1 MUSLIM LAW OF HIZANAT

Sec. 352 of Mulla’s Mahomedan Law talks about the right of mother to the custody of infant
children which elaborately states that mother is entitled to the custody of her female children
until she has attained puberty and section 353 states in the absence of the mother the right of
mother shall be exercised by the female relations. Such custodial rights of a female member
are subject to the principle of welfare of the children which is overriding on the personal
laws. Personal rights of either of the parties cannot be permitted to override the welfare of the
children.30 The right to Hizanat can be rebutted if circumstances are such which justify
depriving the party entitled to the custody under Mohammedan law, an order can be made to
that effect.31

4.2 AMINA BEGUM’S RIGHT OF HIZANAT TERMINATES

The right of Hizanat to female relations can be terminated on the grounds that the Hizana(in
this case Amina Begum), has removed the children out of the custody without the consent of

28

Mohd. Amin v. Ateeka Banu, AIR 1963 J&K 32¶7 ; Sakina Begum v. Malka Ara Begum, AIR 1948 All 198;
29

Hasn Bhatt v. G.M. Bhatt, AIR 1961 J&K 5 ¶2.

30

Md. Riazuddin Ahmed v. Ms. Farida Begum, (2007) 3 Gau LR 694.

31

[Link] Jan v. Master Muhammad Afsar Khan, PLT. 1962 Lah 142.

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 Memorandum on behalf of the Respondents

Md. Sultan, refused to return them and also disallowed him to meet his own children.

According to Syed Ameer Ali, “The right of Hizanat is also liable to forfeiture in case the
Hazina removes the child without the consent of its father or guardian to such a distance
from his usual place of residence as would prevent him from exercising the necessary
supervision or control over her.”32 This has been applied in the case of Mt. Ghuran v. Syed
Riaz Ahmad.33 The court has observed that, “The girl has reached an age when her education
should be taken up in earnest, and when according to Eastern notions, some thought ought to
be bestowed about her settling in life in future. The relations between the parties are bitterly
strained and while the minor remains in the custody of the grand-mother, it would be
impossible for the father to exercise any control over her education and upbringing. Thus the
conduct of the maternal grandmother in refusing the father access to his daughter, and in
depriving him of all control over the education and upbringing, must, in the circumstances of
the case, be held to amount to the removal of the child from the custody of its guardian.”

4.3 CUSTODY COMES ALONG WITH THE GUARDIANSHIP

The matters of guardianship are basically governed by the Guardians and Wards Act,1890.
The Muslim Personal Laws give right of custody. It is clear that custody and guardianship are
different, but guardianship includes custody of a child as well.

The father in Mohammedan law is recognised as the legal guardian. In Imambandi34, their
lordships of the privy council said, “It is perfectly clear that under the Mohammedan law the
mother is entitled only to the custody of the person of the minor child up to a certain age
according to the sex of the child. But she is not the natural guardian; the father alone, or, if
he be dead, his executor (under/Sunni law) is a legal guardian.”

The right of custody of the mother and the female relation mentioned in section 353 is
subject to supervision of the father which he is entitled to exercise, by virtue of his
guardianship.35

32

Syed Ameer Ali, Muhammadan Law,233 (Raja Said Akbar Khan, Ed.7, 2008).
33

Mt. Ghuran v. Syed Riaz Ahmad, AIR1935 Oudh 492.

34

Imambandi v. Mutsaddi, AIR 1918 PC 11; Ulfat Bibi v. Bafati, AIR 1927 All 581; Siddiq-un-nissa v.
Nizamuddin, AIR 1932 All 215; Fatima Bibi v. Pentu Shaeb, AIR 1941 Mad 944.
35

Mulla Principles of Mahomedan Law, 448 (Professor Iqbal Ali Khan,22nd Edition, 2017).

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 Memorandum on behalf of the Respondents

It was laid down in the case of Rafiq36, that where the father of a Mohomedan minor girl was
living and there was nothing to show that he was unfit to be the guardian of the minor, he was
entitled to retain the custody of the minor as against the preferential right under
Mohammedan Law of the maternal aunt of the minor’s mother. In other words, the provisions
of Sec. 1937 of the act would prevail over the provisions of sec. 17 38. The sections of Muslim
Personal Law cannot be read in isolation or divorced from the provisions of the Guardians
and Wards Act.39

The very principle of guardianship is that there is a presumption that parents will be able to
exercise good care in the welfare of their children if they do not happen to be unsuitable as
guardians.40 By giving due respect to the sentiments the Kerala High Court was of the view,
“It is for the welfare of the child that the child should be with the father.”41

Having looked at such instances, it is humbly submitted to the court that Md. Sultan being the
guardian should have the custody of minors as the welfare lies with him only.

4.4 PATERNAL GRANDMOTHER’S RIGHT OF HIZANAT

It has not been considered necessary to appoint only a female as a guardian of a female
child,42 although if the court is of the view that such is necessary, Nazma Begum who is
staying with Md. Sultan could serve the purpose as she is also entitled to Hizanat.

It is also contended that the right of Hizanat can also be exercised by the children’s father’s
mother, i.e. by Nazma Begum who resided with Md. Sultan. The right of Hizanat of Amina
Begum has terminated and the next person would get the custody. In the second priority the
right to Hizanat belongs to the paternal grandmother.43 It is also argued from a comparative

36

Rafiq v. Smt. Bashiran, AIR 1963 Raj 239.

37

Section 19, Guardians and Wards Act,1860.

38

Section 17, Guardians and Wards Act, 1860.

39

Bushara v. Shibinu, AIR 2015 Ker 21 ¶5.

40

B.N Ganguly v. C.H Sarkar, AIR 1961 MP 173 ¶22.

41

P. Ayishakkutty v. Abdul Samad, AIR 2005 Ker 68.

42

In Re Mst. Hurunnisa Bibee, 27 IC 74.

43

Sir D.F Mulla’s Principles of Mahomedan Law, 448 (Professor Iqbal Ali Khan,22nd Edition, 2017).

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 Memorandum on behalf of the Respondents

view that it is clear that in case the custody is given to the father, the child will get the utmost
care from both the father and the paternal grandmother and also this arrangement would not
be in conflict with the personal laws as Hizanat would be exercised by the paternal
grandmother (Nazma Begum).

Also, it should be noted that if now the custody is given to the maternal grandparents only on
the basis of the right of Hizanat, it would be difficult for the children to adjust with Sultan
after the Hizanat period is over as eventually Sultan will become the legal guardian of the
children having all rights of custody. So, it is better if the custody from initial stage itself
remain with the father.

5. THAT THE CWC WHILE PASSING THE IMPUGNED ORDER HAS NOT FAILED TO CONSIDER THE

WELFARE OF THE TWO CHILDREN, WHILE ENTRUSTING THEIR INTERIM CUSTODY TO MD. SULTAN WHO
HAS BEEN IMPLICATED IN A CRIMINAL CASE.

5.1 MD. SULTAN IS A FIT PERSON FOR THE INTERIM CUSTODY

It is humbly submitted that the CWC while passing the impugned order has not failed to
consider the welfare of the two children and thereby it was not wrong while entrusting their
interim custody to the father Md. Sultan. Accusations made on Md. Sultan are not relevant
and has only been made with a guilty intent to gain the custody of the minor girl.

According to Juvenile Justice Act of 2015, ‘Fit person’ means “any person, prepared to own
the responsibility of a child, for a specific purpose, and such person is identified after inquiry
made in this behalf and recognised as fit for the said purpose, by the Committee or, as the
case may be, the Board, to receive and take care of the child.”44 The CWC has rightly
declared Md. Sultan as fit and entrusted custody and is right in considering facts and
circumstances.

5.1.1 MD. SULTAN WAS NOT A CONVICT BUT ONLY AN ACCUSED

The CWC while passing the impugned order, considered the welfare of the two children and
thus it should not consider the criminal case against Md. Sultan, who was only an accused.
An accused is presumed to be innocent till he is proved to be guilty. 45 The principle that there
is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and
44

Section 1(28), Juvenile Justice (Care and Protection of Children) Act,2015.

45

180th Law Commission of India Report, Article 20(3) of the Constitution Of India and the Right To Silence, 8,
(2002) available at [Link] , last seen on 24/03/2018.

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 Memorandum on behalf of the Respondents

elementary, and its enforcement lies at the foundation of the administration of criminal law. 46
During this process accused cannot be denied the rights of individual freedom and rights
given to him under the Constitution of India and also human rights.

In the case of Doli Banerjee47, the court refused to enter into the merits of the allegations
made under Section 498 A of IPC because that had little to do with the custody of the child.
The welfare of the minor can be determined by the facts and circumstances. It is not enough
to disqualify a person being appointed a guardian just because charges are made against
him.48

It is pertinent to note that some women misuse the protections in Protection of Women from
Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code, to take children
away from their fathers.49

[Link] INTERNATIONAL COVENANTS FOR EQUAL TREATMENT IN COURTS

Article 14 (1) of International Covenant on Civil and Political Rights 50 states that all persons
shall be equal before the courts and tribunals. In the determination of any criminal charge
against him everyone shall be entitled to a fair hearing by a competent, independent and
impartial tribunal established by law. Everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty according to law.

5.2 WELFARE OF THE CHILDREN IS WITH MD. SULTAN

Welfare is not defined as such under a statute but the courts have to take into consideration
the facts and circumstances.51 It has been evident from cases that it is a settled principle that
the best interest is to be followed. Welfare of the children should be the paramount
46

Coffin v. United States, 156 U.S. 432 (1895, Supreme Court of United States).
47

Doli Banerjee v. Prabir Banerjee, II (1997) DMC 352.

48

In re, Hurunessa Bibi, 27 IC 74; Mst. Triphati v. Mst. Partapi, 1 IC 465; Kaliman v. Ahmedi, AIR 1931 Cal
563.
49

257th Law Commission of India Report, Reforms in Guardianship and Custody Laws in India, 9,(2015)
available at [Link] last seen
on 24/03/2018.
50

ICCPR available at: [Link] ,last seen on 15/03/2018.

51

ABC v. The State (NCT of Delhi), AIR 2015 SC 2569 ¶18; Surya Vadanan v. State of Tamil Nadu and Ors,
AIR 2015 SC 2243 ¶43; Arathi Bandi v. Bandi Jagadrakshaka Rao and Ors  AIR 2014 SC 918 ¶22; Shaleen
Kabra v. Shiwani Kabra,  AIR 2012 SC 2467 ¶6; Gaytri Bajaj v. Jiten Bhalla, AIR 2012 SC 541 ¶7.

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consideration.52 Various factors that the court would take into consideration are the following:

5.2.1 PRESUMPTION OF WELFARE THROUGH GUARDIANSHIP

In the case of Mohd. Yonus53 it was followed that, “If there is a conflict between the personal
law to which the minor is subject to and consideration of his or her welfare the latter must
prevail.”54

It is humbly submitted to the court that, the welfare of the children concerned is with the
father. Md. Sultan, by virtue of his guardianship he can exercise his care and custody over
the children. Being the legal guardian, it is his right as well as duty 55 to take care of his
children.

The very principle of guardianship is that there is a presumption that parents will be able to
exercise good care in the welfare of their children if they do not happen to be unsuitable as
guardians.56 As already discussed, Md. Sultan is a fit person, it could be reasonably presumed
that he will be able to give good care and provide for the welfare of the children. Moreover,
Md. Sultan has always been a loving husband and a caring father. He has utmost affection for
his children. He gave love and utmost attention to Ruksar who was being nurtured with due
care and responsibility by him and Nazma Begum, which shows that he is perfectly fit and
capable of fulfilling his parental responsibilities.

5.2.2 WELFARE NOT ONLY MEASURED MATERIALLY BUT EMOTIONALLY AS WELL

In Re Mc. Grath57 which are approvingly quoted58 by courts in India are pertinent. “The
welfare of the child is not to be measured by money or by physical comfort only. The word

52

Prateek Gupta v. Shilpi Gupta, 2018 (1) ACR 16 ¶34; Shafin Jahan v. Asokan K.M. and Ors.,
MANU/SC/0340/2018 ¶39; Santhini v. Vijaya Venketesh, 2017 (6) BomCR 315 ¶25; Nithya Anand Raghavan
v. State of NCT of Delhi and Ors., AIR 2017 SC 3137 ¶24; Jitender Arora and Ors. v. Sukriti Arora, AIR 2017
SC 957 ¶10.
53

Mohd. Yonus v Shamshad Bano, AIR 1985 All 217.

54

Sultan Ahmad v. Sabina Bibi, 1969 All LJ 799 ¶13.

55

Article 18 (1), Convention on the Rights of the Child.

56

B.N Ganguly v. C.H Sarkar, AIR 1961 MP 173 ¶22.

57

In Re Mc. Grath, 62 LJ Ch 208.

58

Dhanwanti Joshi v. Madhau Unde, (1988) 1 SCC 112.

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‘welfare’ must be taken in widest sense. The moral and religious welfare must be considered
as well as physical well-being. Nor can the ties of affection be disregarded. However,
material considerations have their place, they are secondary matters. Loving and
understanding, care and guidance, the warmth and compassionate relationships that are
essential for the full development of the child’s own character, personality and talents”. The
child does not grow merely on food and clothing. The growth of its personality need love of
parents, the denial of which warps the mind and distorts the vision of life. A barren life
devoid of love of parents impairs the growth of the child.59

In the case of Ram Murti Chopra60, the High Court of Delhi giving custody to the father held:
“There can be no substitute for parents of a child. Where a father dies, the child is brought
up by the mother and where a mother dies the child is normally brought up by the father.
Grandparents cannot substitute the love and affection which is given by a father or mother
and the anxiety which a natural father would have to see that his son rises in life and chooses
a career of his own choice. A father would do all extra effort to see that his son/daughter
does better in life than he himself has done. This normally cannot be expected from any other
person howsoever affluent he may be, howsoever rich he may be and howsoever related he
may with the child. There may be exceptions but exceptions do not make rule. I, therefore,
consider that the decision of the Trial Court was not bad and was a right decision to
handover the custody of the child at the tender age to the father. The emotional disturbances
of the child would have been for a short period and the child would have adopted to the new
circumstances.”

In W v. W61, Lord Marrivale made the following observation: “Well-being of the child while
it is of tender age requires pre-emptorily that the child should remain ordinarily in the care
in which since its birth it has been”. The children had become compatible to surroundings
and situations where they have been staying. Dislocation of child from place where she has
grown up would cause emotional strain and depression to her.62

The two children were staying with their parents Sultan and Shazia since birth and therefore

59

Sharli Sunitha v. D. Balson, (2007) 1 MLJ 56 ¶10.

60

Ram Murti Chopra v. Nagesh Tyagi, (2008) ILR 12 Delhi 169 ¶23.
61

W. v. W 1926 Law Reports (Pro. Div.) p. 111.

62

Anil Kumar Pradhan v. Madhavi Pradhan, AIR 2016 Ori 6 ¶13.

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there has been a sentimental connection that has been developed between Md. Sultan and his
daughters. The custody was disturbed after the grandparents took the children away.

If the mother or the father are fit and alive to be guardians, no other person can be appointed63
or declared guardians of a minor’s person or property. Mother and father can be excluded
from guardianship only in case they are found unfit to discharge their duties and
responsibilities that go with guardianship, or upon their failure, refusal, or abandonment of
such duties and responsibilities. 64 No such failure has been done, also it is pertinent to
mention that Md. Sultan has a handsome earning and sufficient means for the maintenance of
himself and his children. Md. Sultan’s utmost concern is the welfare of the minor girls.
Hence, it is submitted to the court that the father should be entitled to the custody.

5.2.3 WISHES OF THE CHILDREN IS NOT RELEVANT

The children are of tender age. The age of Ruksar is 3 ½ years and Razia is 1 year, no child of
tender age will be in a position to express any opinion in regard to it’s like and dislikes as
well as the harassment said to have been caused to its deceased mother by the father. 65 The
wishes of the children could not be considered as they are not of the age of forming an
intelligent view in choosing the parent. The courts have said that the age of discretion is not
dependent on the intellectual precocity or otherwise of the child but on attainment of a certain
age.66 Below that age the children have no option but to live with their parents.67

5.2.5 GRANDPARENTS DISLIKING OF SULTAN IS NOT RELEVANT

According to the Court, the mere fact that the maternal grandparents disliked the father was
no ground to deny him custody in case the father was not unfit. 68 The petitioner resisted the
marriage of Md. Sultan and Shazia. It becomes evident from the facts that the petitioners did
not like Md. Sultan. The cruel hands of destiny have deprived the child from the tender love,

63

Annie Besant v. Narayaniah, AIR 1914 PC 41.

64

Deepa Sasikumar v. Sasikumar, AIR 2012 Ker 69.

65

Ettiappa Mudaliar v. T. Subramanian, (1993) I MLJ 333 ¶11.

66

R.v Howes,( 1860) 2 EL&E 332; Cartlidge v. Cartlidge,(1862) SW&TR 567; Mallison v. Malling, (1866) 1
P&D 221; Reg v. Clarke, (1857) 26 LJ QB 169.
67

P. Diwan, Law of Adoption Minority Guardianship & Custody, 582 (4th ed., 2010).

68

K Venkat Reddy v. Chinnapa Reddy Vishwanadha, AIR 2009 AP 1.

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care and affection of their mother, but the human factors and emotions of grandparents
cannot be allowed to deprive the children of their father as well.69

5.2.6 CONDUCT TOWARDS WIFE AND FAMILY PROBLEMS IS NOT RELEVANT

In re Spence70, the court said that merely because the husband’s conduct was such as to make
his wife unhappy, was not enough to deprive him of the custody of his children. It must be
shown that his conduct was likely to contaminate and corrupt the morals of children. In Ex
parte Warner71, the court said that the father cannot be deprived of the custody merely
because of his cruelty towards the child’s mother. In re Curtis72, mere cruelty towards the
mother was held not sufficient to deprive a father of the custody of his children. 73 The Indian
law represents the same tendency, the mere fact that the father treated the deceased mother
of the child with cruelty was considered not enough to deprive a father of the custody of his
children.74 It is such that no signs of cruelty is shown in any manner. There could not be a
question what Md. Sultan’s past family problems were as they are totally irrelevant to the
question of custody.

5.2.7 INTENTION TO REMARRIAGE IS NOT RELEVANT

Remarriage is not a ground that would affect his right to child’s guardianship. 75 In the case of
T. Kochappi v. R.S.Pillai76 where after the death of mother, children’s custody was not
granted to the maternal grandparents who claimed it on the grounds that father remarried. 77 It
is pertinent to notice that Md. Sultan has not yet married but only has showed an intention to
re-marry out of transitory exasperation. Even if he does so, it does not imply that he is not

69

Ram Murti Chopra v. Nagesh Tyagi, (2008) ILR 12 Delhi 169 ¶18.
70

In re Spence, (1847) PH 247.

71

Ex parte Warner (1792) 4 Bro CC 101.

72

In re Curtis, 118 RR 844.

73

In re Bartled, (1886) 2 Coll. 611.

74

Gangarupa v. Pollepalli, AIR 1935 Mad. 568; Atchayaya v. Kosaraju, ILR 1929 Mad. 81.
75

Audiappa v. Nallendra, AIR 1916 Mad 605.

76

T. Kochappi v. [Link] , AIR 2006 Mad 330.

77

Poolakkal Ayisakutty v. [Link], AIR 2005 Ker 68.

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deserving of the solace and custody of his child.78

5.3 MATERNAL GRANDPARENTS ARE NOT FIT

The fitness of the ageing grandparents 79 is also a factor, it has been seen in Shamsher Singh v.
Jasbir Kaur.80 The court held that there were no doubts about the love and affection of the
third party towards the child but in view of his advanced age and feeble mind and body, his
appeal was dismissed. Grandparents are old and have their own problems. 81 Md. Sultan is
educated and healthy, these factors were also considered by the court.82

Shazia wanted to uphold peace and love in her marital life, Shazia severed contacts of her
child with her parents which clearly indicates that she didn't want any interference of her
parents in upbringing the children and so she prioritized Sultan over her parents. Also, there
were no signs of Amina Begum trying to reunite with her daughter and grandchildren before.

6. THAT THE CWC WHILE PASSING THE IMPUGNED ORDER SHOULD NOT HAVE PROVIDED

PREFERENTIAL PROTECTION TO THE RIGHTS OF THE GRANDPARENTS (WHO ARE RESPECTABLE SENIOR

CITIZENS OF LINDIA) OVER THE RIGHTS OF MD. SULTAN WHO HAS BEEN GRANTED POLITICAL ASYLUM IN
THE COUNTRY.

It is humbly submitted before the Hon’ble High court that the CWC while passing the
impugned order should not have provided preferential protection to the rights of grandparents
over the rights of Md. Sultan. CWC is a statutory body which has authority to consider the
rights of children in need of care and protection and not to grant preferential protection to the
rights of a citizen over a non-citizen. Grandparents do not hold any such preferential rights
over the rights of Md. Sultan who has been granted political asylum and a temporary
residentce by the Lindian Government. Other than the right of Hizanat which has been lost by
the grandmother83, Amina Begum.

78

Ayyadorai Pillai v. E.H.B David, AIR 1960 Mad 519.

79

Ram Murti Chopra v. Nagesh Tyagi, (2008) ILR 12 Delhi 169 ¶25.
80

Shamsher Singh v. Jasbir Kaur, AIR 2012 HP 83.

81

Vivek Singh v. Romani Singh, AIR 2017 SC 2009.

82

Jaswinder Singh v. Surjeet Singh, AIR 2010 (NOC) 425 (P&H).

83

Syed Ameer Ali’s Muhammadan Law,233 (Raja Said Akbar Khan, Ed.7, 2008).

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6.1 PROVISION OF UNIVERSAL DECLARATION OF HUMAN RIGHTS

Doctrine of Equal Protection precludes discrimination of any kind.84 In Article 7 of UDHR85,

it has been highlighted that, “All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.” Equal protection means, the absence of any arbitrary discrimination by the
laws themselves or in their administration. None should be favoured 86 and given preferential
protection of rights.

6.2 PROVISIONS OF CRC

Article 9 of CRC states: “States Parties shall ensure that a child shall not be separated from
his or her parents against their will, except when competent authorities subject to judicial
review determine, in accordance with applicable law and procedures, that such separation is
necessary for the best interests of the child. Such determination may be necessary in a
particular case such as one involving abuse or neglect of the child by the parents, or one
where the parents are living separately and a decision must be made as to the child's place of
residence.”

A reading of this article of the CRC clearly suggests that children should not be separated
from his parents. The children are not capable of forming decision as to whom they want to
live. CWC being an authority competent in determining the welfare of the child has restored
and designated the custody of the minor girls to Md. Sultan. The unlawful separation of the
children made by the maternal grandparents was unnecessary and in conflict with best
interest of the child for the reasons stated in the above issues.

6.3 PARENTAL RIGHTS DOCTRINE

The parental rights doctrine holds that a biological parent is entitled to the custody of the
child unless he is affirmatively shown to be unfit.87 It is justified today through the

84

III D. D. Basu, Commentary on the Constitution of India,1501 (8th ed., 2008).

85

UDHR available at: [Link] last seen on 02/04/2018.

86

Morey v. Doud, 118 US 356, (1956, Supreme Court of United States).

87

Roche v. Roche, 25 Cal. 2d. 141 (Supreme Court of California); Stout v. Stout, 201 P.2d 637 (1949); Ex parte
Barnes, 104 Pac. 296 (1909).

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assumption that a natural parent will most adequately fulfil his child's needs. 88 Custody by a
biological parent will best achieve the goal of protecting the child's interests. 89 A ‘blood tie’
between parent and child will eventually result in more and better love and, hence, in a more
adequate psychological development of that child.90

There is absolutely no circumstance which warrants deprivation of parental rights of the

father, the mere fact that the grandparents are much attached to the minor is not at all a
ground to negative the claim of the father, the natural guardian.91

7. THAT THE CWC WHILE PASSING THE IMPUGNED ORDER RESTRAINING MD. SULTAN FROM LEAVING
LINDIA WITH HIS MINOR CHILDREN HAS DISREGARDED PROVISIONS OF CRC AND OTHER

INTERNATIONAL COVENANTS THAT ARE APPLICABLE HEREIN.

It is humbly submitted before the Honourable Court that by restraining Md. Sultan from
leaving Lindia with his minor children, CWC has disregarded the provisions of CRC and
other International Covenants. The Supreme Court has spelled out in Article 14 and 21 the
‘Right to travel abroad92 and return to one’s country’93, which have been substantiated by
UDHR and ICCPR. The protection of the Article extends to all “persons”, not merely
citizens.94

7.1 DISREGARDED PROVISIONS OF CRC AND OTHER INTERNATIONAL COVENANTS:

Sec 10 of CRC states “A child whose parents reside in different States shall have the right to
maintain on a regular basis, save in exceptional circumstances personal relations and direct
contacts with both parents…... States Parties shall respect the right of the child and his or
her parents to leave any country, including their own, and to enter their own country. The
88

Newby v. Newby, 55 Cal. App. 114 (Court of Appeals of Indiana); Stout v. Stout, 201 P.2d 637 (1949); In re
Kailer, 255 Pac. 41, 42 (1927).
89

Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917 ), (Supreme Court of Iowa) ; In re Jackson, 164 Kan.
391, 562 So. 2d 1271 (1990) (Supreme Court of Mississippi).; Ross v. Pick, 86 A.2d 463 (Md. 1952) (Court of
Appeals of Maryland).
90

Chapsky v. Wood, 26 Kan. 650, 652 (1881) (Supreme Court of Kansas).

91

Ettiappa Mudaliar v. T. Subramanian, (1993) I MLJ 333 ¶14.

92

Maneka Gandhi v. Union of India and Others, AIR 1978 SC 597.

93

D. D. Basu, Commentary on the Constitution of India, 3105 (8th ed., 2008).

94

Anwar v. State of J&K, ( 1971 ) 3 SCC 104.

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right to leave any country shall be subject to...recognized in the present Convention.” Right
of child and parent “to enter their own country” is unqualified by any restriction.95

Also, Article 12(4) of the International Covenant on Civil and Political Rights which states,
“No one shall be arbitrarily deprived of the right to enter his own country” and Article 13(2)
of Universal Declaration of Human Rights, 1948 which states “Everyone has the right to
leave any country, including his own, and to return to his country”.

When these provisions of the conventions are read together, it could be construed that Md.
Sultan has the right to leave the country and the children are to be with the father in
pursuance to the welfare of the children and the parental rights.

7.1.1 THE PROVISIONS OF INTERNATIONAL COVENANTS COULD NOT BE DISREGARDED

The Supreme Court held that the rules of customary international law which are not contrary
to the municipal law shall be deemed to have been incorporated in the domestic law and shall
be followed by the courts of law. 96 Such a notion was reiterated in the case of Vishakha and
others v. State of Rajasthan97, it was said “Any International Convention not inconsistent
with the fundamental rights and in harmony with its spirit must be read into these provisions
to enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to
enact laws for implementing the International Conventions and norms by virtue of Article
253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.”

Article 26 of Vienna Convention on the Law of Treaties, 1969 states the principle of Pacta
Sund Servanda meaning “Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”. This Convention is regarded as customary law hence rights
guaranteed under the above mentioned conventions must be protected by the judiciary.

Interpreting these international covenants in consonance with the cases and customary law, it
is clear that the order of the CWC restraining Md. Sultan from leaving Lindia is a clear

95

Implementation Handbook for the Convention on the Rights of the Child ,140, available
at
:[Link]
he_Child_Part_1_of_3.pdf, last seen on 11/04/2018.
96

Vellore Citizens Welfare Forum v. Union of India and others, (1996) 5 SCC 647.
97

Vishakha and others v. State of Rajasthan, AIR 1997 SC 3011.

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violation of the rights of Md. Sultan and thus he should have the discretion to take his
children anywhere along with him.

7.2 CUSTODY COULD BE ENTRUSTED EVEN OUTSIDE LINDIA

In Margaret v. Chacko98 where the issue was whether custody and care of a child could be
entrusted to a parent who is living outside the country and hence out of the court’s
jurisdiction, the court held that if the court as parens patriae feels that it is necessary in the
paramount interest of the child, that custody and care of the child be entrusted to one of the
parents who is residing out of the jurisdiction, it has full powers to pass orders permitting the
child to be removed out of the jurisdiction.99
Here in the instant case, the welfare of the minors lie with the father, Md. Sultan. As
discussed in the previous issues, [Link] has the right of custody. Herein, the cases
discussed are extension of those rights. It could therefore be construed that the father must
also be given rights to move back to his country with his children. It is thereby submitted to
the court that Md. Sultan should have the discretion of moving to Pakmulk along with his
children.

98

Margaret v. Chacko, AIR 1971 Ker 1.

99

See: In re Sister Gemma, AIR 1970 Mad 262.

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PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited, the
Counsel on behalf of the Respondents most humbly pray before this Honourable Court to be
pleased to adjudge and declare:

I. THAT THE IMPUGNED ORDER PASSED BY THE CWC IS VALID AND THEREFORE BE

UPHELD.

II. THAT THE CUSTODY IN CONSONANCE WITH THE WELFARE AND BEST INTERESTS OF

THE TWO MINOR GIRLS LIES WITH THE FATHER, MD. SULTAN.

III. THAT MD. SULTAN HAS THE DISCRETION TO MOVE BACK TO HIS COUNTRY ALONG

WITH HIS CHILDREN.

And to pass any order or relief in favour of the Respondents that this Court may deem fit in
the larger interests of Justice.

For this act of kindness, the counsel shall remain duty bound forever.

Sd/-

COUNSEL FOR THE RESPONDENTS

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