4TH INTRA UNIVERSIT4TH INT UNIVERSITY MOOT COURT COMPETITION, 2020

ON BEHALF OF PETITIONE4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

ON BEHALF OF RESPONDANT
4TH INTRA UNIVERSITY MOOT COURT COMPETITIOON BEHALF OF PETIT
COMPETITION, 2020
ON BEHALF OF PEITIONER

TEAM CODE: NLC 125

SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL

MOOT COURT COMPETITION, 2020

BEFORE THE HON‟BLE SUPREME COURT

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION (CIVIL) (____/2020)

IN THE MATTER OF

RAKESH MEHTA & ANOTHER…………............................................ PETITIONER

V.

ARJUN KUMAR & ANOTHER................................................................. RESPONDENTS

WITH

ARJUN KUMAR & ANOTHER................................................................. PETITIONER

V.

RAKESH MEHTA & ANOTHER…………............................................ RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

Contents
TABLE OF ABBREVIATIONS ............................................................................................................. 3
TABLE OF AUTHORITIES .................................................................................................................. 4
STATEMENT OF JURISDICTION .......................................................................................................... 6
STATEMENT OF ISSUES ............................................................................................................. 7
STATEMENT OF FACTS.............................................................................................................. 8
SUMMARY OF ARGUMENTS .................................................................................................. 10
ARGUMENTS ADVANCED ...................................................................................................... 12
PRAYER.......................................................................................................................................... 21

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Table of Abbreviations
& And

AIHC All India High Court Cases

A.P Andhra Pradesh

Vol. Volume
AIR All India Reporter

Art. Article

FIR First Information Report

RAYE Research Association for Youth

Empowerment

Cri. Criminal
Cri. L.J./ Cr L.J. Criminal Law Journal
Hon‟ble Honorable

ISP Internet Service Provider

YP(HP) Act Young Persons Harmful

Publications Act

NGO Non-Governmental Organization

No. Number

IT Act Information Technology Act

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Supp Supplementary

UOI Union of India

v. Versus

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Table Of Authorities

CASES
1. Tara Chand Mavar v. Smt. Basanti Devi, 1988 RLR (2) 318
2. Jai Parkash v. Shyam Sunder Agarwala, AIR 2000 SC 2172.
3. Munnodiyil Peravakutty v. Kuniyedath halil Velayudhan, AIR1992 Ker 289
4. Vivek Singh v. Romani Singh, (2017) 3 SCC 231
5. In Re Mc. Grath, 62 LJ Ch 208.

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

7. Sharli Sunitha v. D. Balson, (2007) 1 MLJ 56 ¶10.
8. Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
9. Mushaf Husain v. Mohd. Jawad, 1918 SCC OnLine Oudh JC 22
10. Tarun Ranjan Majumdar v. Siddhartha Datta
11. Stout v. Stout, 201 P.2d 637 (1949);
12. Newby v. Newby, 55 Cal. App. 114
13. Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592 (1917)
14. In re Jackson, 164 Kan. 391, 562 So. 2d 1271 (1990)
15. Ross v. Pick, 86 A.2d 463 (Md. 1952)
16. Chapsky v. Wood, 26 Kan. 650, 652 (1881)
17. Ettiappa Mudaliar v. T. Subramanian, (1993) I MLJ 333 ¶14.

18. Krisio Kissor Neoghy v, Kadermoye Dossee (1878) 2 C.L.R. 583

19. Daya Ram Vs. Hans Raj, AIR 1930 Lah. 115.

20. Vishvanathv. Rahibai, AIR 1931 Bom: 105.

21. IshwarPrasad v. Raj Harimal AIR 1927 Pat. 145
22. Maroti Bangi Teli v. Radhabai AIR 1945 Nag. 65
STATUTES

1. The Hindu Marriage Act, 1955

2. The Guardians and Ward Act, 1890

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3. The Indian Contract Act, 1872

4. The Hindu Minority and Guardianship Act, 1956
5. The Code of Civil Procedures, 1908
6. HINDU ADOPTION AND MAINTENANCE ACT, 1956.
7. The Hindu Widows' Remarriage Act, 1856

BOOKS

 Kusum, Family Law (4th ed., 2015).

 P. Diwan, Law of Adoption Minority Guardianship & Custody (4th ed., 2010).
 Dr. S. R. Myneni, Hindu Law (Family Law – I), 2nd Edition, 2010

 Universal Hindu Law Bare Act, 2009

 C. K. Takwani, Civil Procedures with Limitation Act, 1963, 7th Edition

ONLINE DATABASE

1. www.westlawindia.com

2. www.scconline.com

3. www.jstor.org

4. www.manupatra.com

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Statement of Jurisdiction
The appellant in the present case has approached the Hon‟ble Supreme Court of India to initiate
the present appeal under article 136 of the constitution of India. The appellant most humbly and
respectfully submits to the jurisdiction of the hon‟ble Supreme Court in the present matter.

Article 136 in The Constitution Of India 1949:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or
order passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces

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STATEMENT OF ISSUES

.
1.

WHETHER ANISHA HAS THE CAPACITY OF GIVING THE CHILD FOR THE
GURDIANSHIP AND ADOPTION TO HER FATHER?

2.

WHETHER THE FINANCIAL CONDITIONS OF THE GURDIAN AND THE WELFARE OF

THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE GIVING AWAY THE
CUSTODY OF THE CHILD?

3.

WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF HIS

DAUGHTER?

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STATEMENT OF FACTS
PARTIES INVOLVED

MR. RAKESH MEHTA & MRS. SANJANA MEHTA: They are parents of Anisha and at
present they have the custody of the child that is Karan who is Anisha‟s son.

DR. ARJUN KUMAR & MRS. ANJALI KUMAR: They are the parents of Dr. Nereaj who is
late husband of Anisha.

BACKGROUND

Anisha, the daughter of Mrs. Sanjana Mehta and Mr. Rakesh Mehta is a well-established
businesswoman in Palam, New Delhi. Dr. Neeraj, the son of Mrs. Anjali Kumar and Dr. Arjun
Kumar is a PhD holder and a professor at R. M University, New Delhi.

10th December 2007: Anisha got married to Neeraj as per Hindu Rites and she shifted with
Neeraj to stay along with her in-laws at Saket, New Delhi.

In the year 2008: From the said wedlock the couple was blessed with a son named Karan.

They belonged to a middle-class background but afforded all the comforts to Karan and was
loved and pampered by his grandparents. Dr. Arjun enjoyed spending most of the time with his

grandson and used to take Karan to school, vacations and imbibed in him all the valuable morals.

In the year 2014: When Karan was six years old, his father Neeraj passed away. Anisha shifted
to her paternal home along with Karan.

29th November, 2016: She got married to Mr. Rohan, a businessman at Gurgaon, Haryana.

Mr. Rohan already had two sons so Anisha left her child with her parents. Karan was pampered
with love and gifts at his maternal grandparents‟ house. Mr. and Mrs. Mehta had to travel for
work about 300 kms away from their residence and returned home to their grandchild only on
weekends. Two caretakers and a driver were appointed to take him to School 55kms away.

DISPUTE

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When Mr. and Mrs. Kumar acquainted about Anisha‟s remarriage and the fact that she had not
taken the child along with her, they asked Anisha and her parents for the custody of the child to
which they refused.

RULING OF DELHI HC – 16TH DECEMBER, 2019

The High Court also rejected the appeals stating that there is no error of law made by the Family

Court in its orders. .

RULING OF FAMILY COURT– 12TH MARCH, 2018

25th February, 2017: Mr. Kumar filed an application u/s 7 of the Guardians and Wards Act,
1890, for their appointment as guardians and custodian of the child in the Family Court also filed
a separate application for injunction against Anisha restraining her from giving the child in
adoption to anyone including her parents.

26th February, 2017: Granted an ex-parte order of injunction against Anisha, also issued notice
to file objection by 26.3.2017 for show cause.

Mr. Mehta filed objection stating that the child was given to him in adoption by Anisha, verbally
on 22.2.2017 and by a deed of adoption executed and registered on 27.2.2017. He prayed for
vacation of the order of injunction and appointment as guardian of the child on the strength of
the adoption deed.

In the meanwhile, Mr. Kumar had brought a separate suit before the District Judge for
cancellation of the deed of adoption executed in favour of Mr Mehta.

The Family court after hearing the matter:

(i) Rejected the prayer of Mr. Mehta on the ground that the matter of adoption was
pending before the District Court.
(ii) Rejected the prayer of Mr. Kumar on the ground that, in presence of natural guardian
court cannot appoint any guardian.
(iii) Allowed the prayer of Anisha on the sole ground that she was the mother (natural
guardian) of the child.

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SUMMARY OF ARGUMENTS
ISSUE 1: ANISHA DOES NOT THE CAPACITY OF GIVING THE CHILD FOR THE
GURDIAN AND ADOPTION OF THE CHILD TO HER FATHER.

Anisha ceased to be Natural Guardian as and when she married Mr. Rohan and did not take his
son with her. As per the facts provided Anisha deprived his son from mothers love and just
thought about herself.

ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE WELFARE

OF THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE GIVING
AWAY THE CUSTODY OF THE CHILD.

2.1 FINANCIAL CONDITION TO BE DETERMINED

It is humbly submitted before the Hon‟ble SC that Capacity of the custodian to supply the daily
necessities such as food, clothing and shelter is the primary consideration along with education
of the child. The custodian must possess the capacity to create surroundings in which the child
will be in touch with education. In the case of a custodian who is himself educated and given to
reading and writing it is easier for the child to keep itself abreast of letters.

2.2 OVERALL WELFARE OF THE CHILD NOT TO BE NEGLECTED

From the facts of it is quite evident that the upbringing of the child under the custody of the
Respondent was not proper. Respondents used to give Karan a full time care and took him to
schools by himself.

ISSUE 3: WHETHER THE MATERNAL GRANDFATHER CAN ADOPT THE CHILD OF

HIS DAUGHTER?

3.1THE MATERNAL GRANDFATHER CANNOT BECOME A GURDIAN?

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An only son should not be gifted away.1 Saunaka says, “By the father of an only son the
gift of a son should never be made”. It was a clear injunction of Vasishtha. Let no man
give or accept an only son as he must remain for the obsequies of his ancestors”. This
prohibition of giving in adoption of an only son has been construed as merely a moral
precept and not as an absolute rule of law. In the given case Karan is the only son left in
the family and Dr Arjun Kumar‟s family name has to be carried forward with him.

3.2THE ADOPTION MADE IS INVALID

On the grounds that the injunction was granted and no such ceremony was performed to support
the act of adoption it is invalid.

1
Saunaka cited in Dattak Chandrika P. 9 Trs. Sutherland.

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ARGUMENTS ADVANCED

ISSUE 1: ANISHA DOES NOT HAVE THE CAPACITY OF GIVING THE CHILD FOR
THE GURDIAN AND ADOPTION OF THE CHILD

The remarriage of the Respondent will amount to termination of guardianship.

Under Section 4(c) of the Hindu Minority and Guardianship Act, 1956, „natural guardian‟ means
any of the guardians mentioned in section 6. Section 6 of the Act states that the natural guardian
of the Hindu minor, in respect of the minor‟s person as well as minors property are –

a) In case of a boy or an unmarried girl – the father, after him the mother.
Provided that the custody of minor who has not completed the age of five years
shall ordinarily be with the mother;

In this case the Anisha should not be the natural guardian and the custody of the child should not
be with her in the first place, according to the rule of law.

The minor child was living with the Respondent since his birth and it should not be taken into
consideration for the guardianship of the minor child to the Respondent, as well as the emotional
content should not overlap the welfare of the child, where the welfare of the child should be the
paramount consideration of the child. In the case Tara Chand Mavar v. Smt. Basanti Devi 2, the
High Court of Rajasthan held that no sentimental consideration should come in the way of
deciding the custody of the child where the sole and only consideration is welfare of the minor
child.

When a widow remarries she ceases to be the surviving half of her husband and then the husband
cannot be supposed to be acting through her. After, The Hindu Widow‟s Remarriage Act, 1856
she is not competent to adopt a son to her deceased husband. She has disaffiliated from her

2
1988 RLR (2) 318

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deceased husband‟s family for all purposes. She also lost, on her-remarriage, the right to give in
adoption her son of her first husband, unless power had been conferred on her by her deceased
husband.

The apex court order in Jai Parkash v. Shyam Sunder Agarwala 3 has diluted the mother‟s
authority. There was a battle by grandfathers on both sides over the custody a one year old male
child, who had lost his father and was with the maternal grandfather. The paternal grandfather
filed an application for being appointed as guardian and custodian of the child, and also sought
an ex-parte injunction against the mother, restraining her from giving the child in adoption to her
father.

The court, however, granted guardianship and custody right to the paternal grandfather. It is
pertinent to note that under the Law, the adoptive father becomes the natural guardian of the
child, and he can be displaced from this position only if he is judicially disqualified, in which
case the court may appoint someone else. In this case, these was nothing to indicate that the as
the adoptive father, was unfit to be a natural guardian. By appointing the paternal grandfather as
the guardian of a child, who was given in adoption by the widowed mother to her father, the
court has only weakened the mother‟s authority of giving in adoption.

ISSUE 2: THE FINANCIAL CONDITIONS OF THE GUARDIAN AND THE

WELFARE OF THE MINOR SHALL BE TAKEN INTO CONSIDERATION WHILE
GIVING AWAY THE CUSTODY OF THE CHILD.

It is humbly submitted before the SC that:

Karan the boy who is 9 years old will find it difficult to adjust with his step father as well as
maternal Grandparents, as Anisha has remarried. Therefore, the Respondent would be in a better
position to take full care of the minor child as they devote their time to Karan. So the child would
never remain neglected.

3
AIR 2000 SC 2172.

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According to Article 1 of UNCRC (United Nations Convention on Rights of Child), “a child

means every human being below the age of eighteen years unless, under the law applicable to the
child, the majority is attained later.” All countries are required to adhere to and are bound to
incorporate the laws mentioned in this convention while deciding the custody or guardianship of
the child. Article 3 of the UNCRC states that all individuals and all the respective authorities, be
it private or public, must consider the “best interests of a child” before taking any decision. This
article must be read with Article 12 of this convention for deciding the best interests of a child.
“This article directs all institutions, courts of law, administrative or legislative bodies, parents,
legal guardians etc. to take actions by giving priority to the best interests of the child.”

2.1 FINANCIAL CONDITION TO BE DETERMINED

In the case Munnodiyil Peravakutty v. Kuniyedath halil Velayudhan4 the High Court of
Kerala held that, the paramount of the welfare of the child is axiomatic. It is the most
dominant consideration in the consciousness of the court.
Capacity of the custodian to supply the daily necessities such as food, clothing and shelter
is the primary consideration along with education of the child. The custodian must possess
the capacity to create surroundings in which the child will be in touch with education. In
the case of a custodian who is himself educated and given to reading and writing it is
easier for the child to keep itself abreast of letters. If the custodian is not educated, he
cannot create the requisite background in the home. Awareness of the need to keep good
health and the capacity to provide the means of keeping good health is another important
factor. A knowledgeable parent would greatly contribute to the child's welfare by taking
steps like emphasizing healthy eating habits, providing for vaccination, other measures of
health-care, timely treatment and the company of books. Less educated or ignorant parents
may not be able to create these conditions. The economic capacity to educate in a good
school, with private coaching, where necessary, meeting expenses of transport, children's
excursions and so on is no less an important factor.

4
AIR1992 Ker 289

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2.2 OVERALL WELFARE OF THE CHILD NOT TO BE NEGLECTED

The welfare principle is aimed at serving twin objectives. In the first instance, it is to
ensure that the child grows and develops in the best environment. The best interest of the
child has been placed at the vanguard of family/custody disputes according to the optimal
growth and development of the child and has primacy over other considerations. This right
of the child is also based on individual dignity. The second justification behind the welfare
principle is the public interest that stands served with the optimal growth of the children.
Child-centric human rights jurisprudence that has been evolved over a period of time is
founded on the principle that public good demands proper growth of the child, who are the
future of the nation, Vivek Singh v. Romani Singh, (2017) 3 SCC 231.5
In Re Mc. Grath 6 which are approvingly quoted 7 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
‘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 needs 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.8

An order of custody of minor children either under the provisions of the Guardians and
Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be
made by the court treating the interest and welfare of the minor to be of paramount
importance. It is not the better right of either parent that would require adjudication while
deciding their entitlement to custody. The desire of the child coupled with the availability
of a conducive and appropriate environment for proper upbringing together with the ability
and means of the parent concerned to take care of the child are some of the relevant

5
Vivek Singh v. Romani Singh, (2017) 3 SCC 231
6
In Re Mc. Grath, 62 LJ Ch 208.
7
Dhanwanti Joshi v. Madhau Unde, (1988) 1 SCC 112.
8
Sharli Sunitha v. D. Balson, (2007) 1 MLJ 56 ¶10.

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factors that have to be taken into account by the court while deciding the issue of custody
of a minor, Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 .9
The word “custody” as used in Section 25 of the Guardians and Wards Act, 1890, ought to
be held to include both actual and constructive custody. It was admitted that this
interpretation could only be arrived at by some straining of the language but it was
considered that it was justified because it would serve to carry out the intention of the
Legislature in framing the Act, Mushaf Husain v. Mohd. Jawad, 1918 SCC OnLine
Oudh JC 2210.
In the case of Tarun Ranjan Majumdar v. Siddhartha Datta, the court emphasised on the
fact that one of the grounds given above is not to be considered as the only ground and
court has to apply all the possible grounds to ensure the best for the child. In this case,
it was contended by the father that he has the legal right to the custody of his child. The
child had been in guardianship of his maternal parents and there was no such fact of them
not treating the child right and hence it cannot be assumed that the father‟s financial
standing would enhance the child as the current guardians are fulfilling every duty. Also, it
is a well-established custom that if one is under the guardianship of someone, that
guardianship shall not be disturbed for any reason that may be presented before the court.
If the court feels that the reasons suffice, the guardianship of the child is not disturbed even
if a legal guardian has approached the court for his legal right.
Justice Bracewell in a case explained what ‟upbringing‟ means. He stated that the
bringing up, taking care for, timely treatment if needed, all education needs and instruction
to the child, all added means that the child is being brought up. This is irrespective of the
fact that the child has biological parents or substitute parents i.e. guardian or next friend,
etc. This word has a wide scope and can be used as any one of the applications.
As per the facts given it is well established that the respondent not only used to give time
but also was able to fulfill all the needs of the child. Inculcation values and giving time is
what a child needs in growing years as the child is considered as wet mud on potter‟s

9
Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
10
Mushaf Husain v. Mohd. Jawad, 1918 SCC OnLine Oudh JC 22

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wheel who can be given shape as desired and leaving a child just on gadgets and servants
would never inculcate values.

ISSUE 3: THE ADOPTION MADE BY MR & MRS MEHTA IS VALID.

It is humbly submitted before the SC that:

As the adoption was considered to be sacramental affair, the performance of Duttaka Homa was
considered to be must at the time of adoption. It was a religious ceremony like that of Vivah
Homa, which is performed at the time of solemnization of a Hindu marriage. Because of these
reasons adoption was considered to be sacramental affair. However, even under old Hindu law,
different persons may like to adopt even for secular purpose for providing security in old age, for
the perpetuation of his line age and for leaving a heir for one‟s properties.

3.1 THE MATERNAL GRANDFATHER CANNOT BECOME A GURDIAN?

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. 11 It is justified today through the
assumption that a natural parent will most adequately fulfill his child's needs.12 Custody
by a biological parent will best achieve the goal of protecting the child's interests. 13 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.14

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

11
C(Supreme Court of California); Stout v. Stout, 201 P.2d 637 (1949); Ex parte Barnes, 104 Pac. 296 (1909).
12
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).
13
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).
14
Chapsky v. Wood, 26 Kan. 650, 652 (1881) (Supreme Court of Kansas).

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ground to negative the claim of the father, the natural guardian.15 In the given case as the
father has died and the mother hast dies therefore the paternal side would be considered
as the most appropriate guardian.

A father is recognized as the legal guardian of his children, when he exists; and when the
father is dead the mother may assume the guardianship. In default of her, an elder brother
of a minor is competent to assume the guardianship of him. In default of such brother, the
paternal relations generally are entitled to hold the office of guardian; and failing such
relatives, the Office devolves on the maternal kinsmen, according to their degree of
proximity; but the appointment of guardians universally rests with the ruling power.

It is common ground that the ancient texts of Hindu Law do not provide for the
management of a minor's property beyond stating that the guardianship shall rest with the
King. The position of the King is now taken by the Court. Custom has, however,
recognized that the father of a Hindu minor, and on his death the minor's mother, is
entitled to the guardianship of the minor's estate. This has been accepted from time
immemorial so universally that the right of the father or of the mother as the case may be
cannot now be disputed, but it appears to be equally clear that custom has not extended
the rule beyond the mother. 16

An only son should not be gifted away.17 Saunaka says, “By the father of an only son the
gift of a son should never be made”. It was a clear injunction of Vasishtha. Let no man
give or accept an only son as he must remain for the obsequies of his ancestors”. This
prohibition of giving in adoption of an only son has been construed as merely a moral
precept and not as an absolute rule of law. In the given case Karan is the only son left in
the family and Dr Arjun Kumar‟s family name has to be carried forward with him.

3.2THE ADOPTION MADE IS INVALID

If the act of giving and receiving and Homa are wanting, then boy does not become a son. Thus,
the physical act of giving and receiving are absolute essential in all castes. They bring about the
boy‟s transfer from one family to another. Adoption involves the idea of gift and hence, if the
15
Ettiappa Mudaliar v. T. Subramanian, (1993) I MLJ 333 ¶14.
16
Krisio Kissor Neoghy v, Kadermoye Dossee (1878) 2 C.L.R. 583
17
Saunaka cited in Dattak Chandrika P. 9 Trs. Sutherland.

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physical act of giving and receiving is absent the adoption will be totally void.18It is the giving
and receiving that constitutes an adoption and gives rise to the status of son and substitutes the
adoptee for a natural born son. Even the execution of a registered „ document reciting that the boy
has been adopted, is of no avail.19 This insistence on giving and receiving shows that no adoption
can be made in the boy‟s absence. The doctrine of Factum Valet, cannot validate an
adoption which is invalid by reason that Datta Homa having not been performed, since its
performance is a positive rule of law and not a merely moral precept.

According to clause (vi) of Section 11 of the HAMA, the child must be actually given
and taken by the parents or guardian concerned or under their authority with intent to
transfer the child from the family of its birth or in case of an abandoned child from the
place where the child was brought up to some another family. The transfer of child by the
natural parents or the guardian has to be made to the adoptive parents. It is clearly
mentioned that the performance of Duttaka Homam will not be an essential ceremonies
for the validity of adoption. Thus, according to this clause, only the ceremony of giving
and taking is to be performed. A person who wants to give the child in adoption may say
“I give the child in adoption” and the person who want to adopt the child may say “I
accept the child in adoption”. Before the coming into force of the Hindu Adoptions and
maintenance Act, the Courts took the view that the ceremony of giving and taking is
mandatory, and the ceremony of giving and taking should be performed by the father in
handing over the child to the adopter who should accept the gift of the child. The High
Court said that a mere declaration by the natural parent and adopter is not enough to
create a valid adoption, without actual ceremony of giving and taking. 20 Other High
Courts also expressed the view that the performance of the ceremony of giving and taking
was essential and enough for the validity of an adoption; no specific words need be
expressed.21

According to the given facts there were no such ritual performed and apart from mere
saying there is not such evidentiary stand of the contention that oral adoption took place.

18
Daya Ram Vs. Hans Raj, AIR 1930 Lah. 115.
19
Vishvanathv. Rahibai, AIR 1931 Bom: 105.
20
IshwarPrasad v. Raj Harimal AIR 1927 Pat. 145
21
Maroti Bangi Teli v. Radhabai AIR 1945 Nag. 65.

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 SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020

ON BEHALF OF RESPONDENT

There was an injunction granted by the Family Court on 26th Feb, 2017 against Anisha
restraining her from giving the child in adoption to anyone including her parents.

Although the adoption deed was registered and executed but the date on which it was
registered and executed was 1 day after the injunction was granted which clearly shows
the mala-fide intention of the Maternal Grandparents as well as Anisha.

20
 SHIVAM SARAF MEMORIAL 1ST NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020

ON BEHALF OF RESPONDENT

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 HIGH COURT IS INVALID AND THEREFORE BE

SET ASIDE.

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

MINOR BOY LIES WITH THE PATERNAL GRANDFATHER, DR. ARJUN KUMAR.

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.

21