In the Hon`ble High Court oI Karnataka

At Bangalore, India


Writ Petition No: 1005/ 2010


In the Matter oI

Mr S.N.Rakesh Singh Petitioner


W^_a_


Smt.Reema Singh & Ors Respondent



Respectfully Submitted in the Hon`ble High Court





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




- Memorial on Behalf of the Petitioner-



%BLE OF CON%EN%S

1. NDEX OF &%HOR%ES..............................................................2- 4

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

2. S%%EMEN% OF 1&RSDC%ON.................................................... 5

. SYNOPSS OF FC%S.......................................................................... 6

4. SS&ES RSED..................................................................................... 7

5. S&MMRY OF RG&MEN%S............................................................ 8

6. BODY OF RG&MEN%S...............................................................09- 17

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






NDEX OF &%HOR%ES

C%S/S%%&%ES:
CONSTITUTION OF INDIA, 1950

CODE OF CIVIL PROCEDURE, 1908

UARDIANS AND WARDS ACT, 1890

HINDU MARRIAE AND UARDIANSHIP ACT, 1956

LAWS AND WRITS

BOOK:
AIN M.P., INDIAN CONSTITUTIONAL LAW, URAON, LEXIS
NEXIS BUTTERWORTHS WADHWA NAPUR, 2010, SIXTH
EDITION

UARDIANS AND WARDS ACT, LUCKNOW, EASTERN BOOK
COMPANY, 2008, SEVENTH EDITION


SHUKLA V.N., CONSTITUTION OF INDIA, LUCKNOW, EASTERN
BOOK CORPORATION, 2008, ELEVENTH EDITION.


CODE OF CIVIL PROCEDURE NEW DELHI, NATIONAL BOOK
TRUST, REPRINT 2004 EDITION.

N%ERNE% S%ES:
.judis.nic.in
.indiankanoon.org
.manupatra.com
.indla.com



















LS% OF CSES
Narsimha Rao vs.Y.Venkata Lakshmi
Marggarate Maria Pulparampil Nee ... vs Dr. Chacko Pulparampil And Ors
P.N. RAMACHANDRAN Son oI P.S.) vs. S.V. ANNAPURNI AMMAL (WiIe
oI P.N.) AIR 1964 KER 269IYER
Manju Tiari vs Rajendra Tiari And Ors
Sheshnath Raat vs. Mamta Raat (High Court oI Uttarakhand)
KUMAR V AHINDAR vs. CHETHANA RAMATHEERTHA





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




Statement of facts
The petitioner Rakesh originally hails Irom village Tumbak Bangalore rural
district, and had migrayed to Malaysia in the year 1998.he got married to the
respondent reema at tumbak on 1
st
march 2001 as per hindu rites aIter the
marriage both proceeded to kualalumpur, Malaysia on 27
th
march 2001 Irom
the edlock , son Harish as born on 21
st
une 2007 .The birth oI the child
harish as registered ith the registrar oI births Malaysia. Respondent as
orking as a doctor in government hospital in Malaysia. Petitioner asserts that
on 4
th
February 2010 ithout the knoledge oI the petitioner and her employer,
the respondent leIt the matrimonial home along ith the child (hareesh) and
came to India .She had also brought the jeellery articles and other valuable
items ith her. Petitioner asserts that, aIter making certain enquiries the
respondent along ith the child (hareesh) had taken a Malaysian airlines Ilight
to ne delhi aIter getting visas issued. Petitioner asserts that he tried to contact
the respondent, but aIter getting no response Irom the respondent, he applied Ior
the custody oI his minor son being the natural guardian. The high court oI
Malaysia held that the petitioner as entitled to the legal guardianship oI the
minor child.The order is endorsed by the Ministry oI Ioreign aIIairs Malaysia.
Petitioner`s Iather came to India and moved an application to the senior
superintendent oI police Bangalore, seeking his help Ior the implementation oI
the order
Petitioner asserts that, as the custody oI the child as not given to him by the
respondent (Reema), as per the said Malaysian order, he himselI moved an
application hen he came to India.
The other grouse oI the petitioner is that the respondent is not even alloing
him to meet his minor son.

ISSUES RAISED

1) Whether the order oI a Ioreign court be enIorceable in the Indian court oI
la

2) Whether the Iather is entitled Ior the custody oI the child

3) Whether the petitioner has the Writ jurisdiction

4) In hose custody interest oI minor child Harish ould be better served

















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



S&MMRY RG&MEN%S

The petitioner has taken an ex-parte order and that particular order, ants to be
enIorced beIore the High court oI Karnataka seeking Ior the custody oI the
child.

According to section 6 oI Hindu Minority and uardianship Act 1956 it the
Iather ho is the legal and natural guardian and hence the custody oI the child is
given to the Iather oI the child
According to section 25 oI the guardians and ard act 1890 the custody oI the
child shall belong to the Iather.

The petitioner has complete jurisdiction oI the rit petition to be Iiled at High
court oI Karnataka and hence this petition.
The interests oI the minor child ould be better served by the Iather ho is the
petitioner and thus the care, love and aIIection is given by the petitioner ho is
also the rightIul Iather oI the child.




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




rguments filed by the Petitioner
The present Writ-Petition Iiled by the Petitioner, Rakesh Singh begs to Iile the
above petition seeking Ior the custody oI the child and
1) Whether the order oI a Ioreign court be enIorceable in the Indian court oI
la

For this ,the provision oI section 13 oI CPC.Under Section 13 oI the
Code oI Civil Procedure 1908 , a Ioreign judgment is not conclusive as to
any matter thereby directly adjudicated upon beteen the parties iI

(a) it has not been pronounced by a Court oI competent jurisdiction
(b) it has not been given on the merits oI the case
(c) it is Iounded on an incorrect vie oI international la or a reIusal to
recognize the la oI India in cases in hich such la is applicable
(d) the proceedings are opposed to natural justice,
(e) it is obtained by Iraud,
(I) it sustains a claim Iounded on a breach oI any la in Iorce in India.

"From the aIoresaid discussion the Iolloing rule can be deduced Ior
recognising Ioreign matrimonial judgment in this country. The
jurisdiction assumed by the Ioreign court as ell as the grounds on
hich the relieI is granted must be in accordance ith the matrimonial
la under hich the parties are married. The exceptions to this rule
may be as Iollos:



(i) here the matrimonial action is Iiled in the Iorum here the
respondent is domiciled or habitually and permanently resides
and the relieI is granted on a ground available in the
matrimonial la under hich the parties are married

(ii) here the respondent voluntarily and eIIectively submits to the
jurisdiction oI the Iorum as discussed above and contests the
claim hich is based on a ground available under the
matrimonial la under hich the parties are married

(iii) here the respondent consents to the grant oI the relieI
although the jurisdiction oI the Iorum is not in accordance ith
the provisions oI the matrimonial la oI the parties".

The Petitioner has obtained the Ex-parte order hich is prounonced by a
competent court oI la and hence, this petition should be alloed in the
eyes oI la

The petitioner has also searched Ior the Respondent, and having Iound no
hereabouts oI her, he has applied Ior the custody oI minor child Harish
in High Court oI Malaysia

The petitioner has obtained the custody oI the child through a competent
court oI la, and in this ay the petition should be looked up in an
International sense hich according to section 13 oI the hich is also
reIerred herein as private international la



In that perspective the Supreme Court in the year 1991 in Narsimha Rao
vs.Y.Venkata Lakshmi Iramed these rules hich are reproduced belo to
determine hether the udgement oI Foreign Court can be applied in
India in matrimonial dispute.

The jurisdiction assumed by the Ioreign court as ell as the grounds on
hich the relieI is granted must be in accordance ith the matrimonial
la under hich the parties are married


Marggarate Maria Pulparampil Nee ... vs Dr. Chacko Pulparampil And Ors
These observations ere made in a case here the mother removed the children
ho by an order oI a Ne York Court ere to be under the control and
jurisdiction oI the State oI Ne York, ithout having obtained the approval oI
the Ne York Court and ithout having consulted ith the Iather. She ent
over to England, ignored a subsequent order passed by the Supreme Court oI
Ne York State to re turn the boys there, and issued an originating summons in
England in uly 1965 under hich the boys became ards oI the Court. On a
motion on notice given by the Iather, the trial udge Cross, . made an order that
the mother deliver the boys Iorthith unto the care oI the Iather to hom liberty
as given to take them back to Ne York. This order as upheld by the Court
oI Appeal.





Whether the Iather is entitled Ior the custody oI the child

The ord guardian in this section is used in a ide sense and not necessarily
means a guardian appointed or declared by the court, but includes a natural
guardian or even a de-Iacto guardian. There is an appreciable diIIerence
beteen custody and guardianship, hich is mere comprehensive and valuable
right than mere custody. II the Iather is deprived oI the guardianship oI the
children, he ceases to have any right to custody. II hoever, the Iather continues
to be the guardian and only the custody is given to the mother, he can alays
move the court Ior getting the custody. But Iather being the natural guardian
both under the Hindu and the mahomedan la, so long as he is alive and has not
been declared unIit or is not otherise unable to continue as such the mother
cannot claim the custody in guardianship proceedings.
As per the above said la Irom guardians and ards act 1890 e can Iurther
say that the Iather is the natural as ell as the legal guardian oI the minor child
and the respondent has no right on the custody oI the child.
The respondent ithout the knoledge oI the petitioner has taken aay the
child hich also amounts to abduction.
The Iolloing are the cases herein the custody oI the child as given to the
Iather:




P.N. RAMACHANDRAN Son oI P.S.) vs. S.V. ANNAPURNI AMMAL (WiIe
oI P.N.) AIR 1964 KER 269IYER
Mother- petioner
Father- respondent
Both ere living together. Petitioner leIt the Iather and took the minor child
(girl age 7) ith her. Mother returned back and put the daughter in a school.
One day, the respondent came and picked his daughter Irom school and ent to
madras ith her. Mother Iiled a petition and said that child be restored to her.
udgement as given in Iavour oI the respondent. (FATHER)
Sec 6 oI the uardians and Wards Act applies. (Father is the natural guardian
oI the child)












Whether the petitioner Rakesh Singh has the Writ jurisdiction in the
High Court oI Karnataka

According to article 227 oI the Indian Constitution, every High court
shall have superintendence over all courts and tribunals throughout the
territories in relation to hich it exercises the jurisdiction

In this case, the petitioner has approached this Hon`ble court ith a
petition in the nature oI Habeas-Corpus herein it is alleged that the
Respondent Reema is having the illegal detention oI the child and she has
no right oI separating the kid, the minor son, (harish) to separate Irom the
Iather and in this regard the respondent has malaIide intention oI keeping
the child in her custody

In this particular case it as held that the custody oI the child can be
issued against an individual and the rit oI Habeas-Corpus can be easily
issued ith the person having the illegal detention oI the child
Manju Tiari vs Rajendra Tiari And Ors
Habeas Corpus rit petition
The custody oI the child must, thereIore, be restored to her immediately as the
elIare oI the child shall not be served by alloing him to stay ith his Iather.






In hose custody the interest oI the minor child Harish ould be better served
The natural guardians oI a Hindu, minor, in respect oI the minor's person as ell
as in respect oI the minor's property (excluding his or her undivided interest in
joint Iamily property), are-
(a) in the case oI a boy or an unmarried girl-the Iather, and aIter him, the
mother: provided that the custody oI a minor ho has not completed the age oI
Iive years shall ordinarily be ith the mother;
(b) in the case oI an illegitimate boy or an illegitimate unmarried girl-the
mother, and aIter her, the Iather;
(c) in the case oI a married girl-the husband;
Provided that no person shall be entitled to act as the natural guardian oI a
minor under the provisions oI this section-
(a) iI he has ceased to be a Hindu, or
(b) iI he has completely and Iinally renounced the orld by becoming a hermit
(vanaprastha)
or an ascetic (yati or sanyasi)
Explanation.- In this section, the expressions 'Iather'

The Iather as he is a male member, and has the potentiality to get employment
anyhere, e can easily come to conclusion that the interests oI the minor child
ill be better looked by the Iather oI the child. The elIare oI the child is also
mostly important and in a hindu Iamily, as the Iather is the karta, the head oI the
Iamily, the interests ould be better looked at, by the Iather oI the child

In this particular cases the interests oI the child as looked at and the custody oI
the child as granted to the Iather:
Sheshnath Raat vs. Mamta Raat (High Court oI Uttarakhand)
Both ere married and having 2 children.
Trial court had passed the judgement in Iavour oI mother. Father appealed to the
High Court. High Court summoned the boy to the court. The boy opted to stay
ith his Iather. He as studying in a montessari school. Father as providing
good education to his child hich is beneIicial to the minor. The court held that
elIare oI the minor is oI utmost importance. The Iather`s appeal as upheld
and custody oI child as given to the Iather.

KUMAR V AHINDAR vs. CHETHANA RAMATHEERTHA
Mother as divorced but held the custody oI the minor child. She later got
married to Anil Kumble. She ould take the child ith her henever her
husband ent on tours. Child ould Ieel the distance oI the Iather. The Court
directed her to give the custody oI the minor child to his Iather.









Prayer
WhereIore, in the light oI the Iacts stated, arguments advanced and authorities
cited, the respondent, most humbly prays beIore the Hon`ble court, to be
graciously pleased to hold adjudge and declare that:

A) TO DIRECT THE RESPONDENTS TO HAND OVER THE CUSTODY OF THE MINOR
CHILD HAREESH TO THE PETITIONER IN ACCORDANCE WITH THE UDEMENT OF
THE HON`BLE HIH COURT OF MALAYA AT KAULA LUMPUR..
B) TO PASS ANY OTHER ORDER WHICH THE HON`BLE COURT MAY
DEEM FIT IN THE LIHT OF USTICE, EQUITY AND OOD
CONSCIENCE.



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