Solved moot problem memorial on behalf of applicant /petitioner, Assignments of Civil Law

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IN The Hon'ble District Court of Delhi Section 9(1) Of The Guardian's And Ward Act 1890 Appeal No.......... Raymond .................. Petitioner /Applicant Oriyana ................. Respondent/ Defendant Memorial on the Behalf of applicant/ petitioner Syed shahdab shujat Ent no. 17042122031 BALLB 7 TH SEMESTER

TABLE OF CONTENT INDEX OF ABBREVIATIONS INDEX OF AUTHORITIES STATEMENT OF JURISDICTION STATEMENT OF FACT QUESTION PRESENTED PRAYER

INDEX OF ABBREVIATIONS

&. AND AIR. ALL INDIA REPORTER ALL. ALLAHABAD Anr. ANOTHER Bom. Bombay Cal. Calcutta Co. Company CPC. Civil procedure code Govt. Government Hon'ble Honorable LJ. Law Journal Ltd. Limited No. Number Ors. Others

HC. High Court SCC. Supreme court case Sd/. Signed UOI. Union of India V. Versus Vol. Volume

Index of Authorities

. Case Referred Ruchi majoo v Sanjeev majoo 2011. 6 scc 479 Rosy Jacob v Jacob A Chakramakkal AIR 1973 sc 2090 Dr Ashish Ranjan petitioner v Dr Anupama Tandon Anr. Comtemnors/s Sheoli Hati v Samnath Das 2019 7scc 490 Bihar State govt. Secondary School Teacher Association v. Ashok kumar Sinha and others

STATUTE AND OTHER AUTHORITIES Guardian and ward act 1890 BOOK Civil procedure code by CK Takwani STATEMENT OF JURISDICTION The Hon'ble District Court of Delhi has a jurisdiction to hear an appeal under section 9(1) of the Guardian's and Ward Act,1890.

Court having jurisdiction to entertain application.— (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

STATEMENT OF FACTS

Statement of facts 1 Mr. Raymond belongs to an orthodox religious family who live their life strictly

according to their holy book called the 'Book of Life'. 2 Ms. Oriyana was born and brought up in New Delhi.While her family also belongs to the same community as Mr. Raymond, they do not practice their beliefs with the same rigour as Mr. Raymond and his family.Oriyana has a law degree from Delhi University and in1990 she won a full scholarship to do an integrated LLM. 3 She completed the same in 1996 and returned back to India to work with an international organisation [called Equality Nox International] working on LGBT rights issues. 4 In 1998, her organisation started a campaign project for creation, lobbying and

implementation of welfare schemes for LGBT community in India and she was appointed as a Joint Director of the said Project.Ms Oriyana Zutshi met Mr. Raymond Ken at a religious gathering organised to generate funds for victims of an earthquake. 5 Raymond and his family convinced Oriyana to leave her job and stay at home. Oriyana gave birth to twin girl namely Lisa ken and Aliya ken. In 2016 the couple got divorce and oriyana stay with her parents.she took the daughter with her Raymond file case for the custody of children ,but court denied said the girl will stay with their mother till they attain the

age of7 years, Raymond was granted visitation rights 6 she joined the org. again as a director because ofof her divorce and stess of work she started to drink a lot because of which she was suspended form her org. she underwent for rehabilitation and counselling and her condition has not improved a lot 7 In Dec 2019 lisa ken told her father that they want to come and live with them Oriyana has raised an issue that the case is time barred and is also barred by virtue of res judicata ISSUES RAISED:

ISSUE-1: WHETHER THE PETITION IS

MAINTAINABLE?

ISSUE-2: WHETHER THE PRINCIPLE OF RES-

JUDICATA IS APPLICABLE?

ISSUE-1:

1: The issue focuses on whether the petition could be maintained in the court of law or not. Yes, the appeal is maintainable.

ISSUE-2:

2: This issue focuses on whether or not the principle of Res-Judicata would be applicable to the appeal or not. No res judicata will not be applicable keeping in mind the welfare of the child and change in circumstances of the case SUMMARY OF ARGUMENT Issue 1. Whether the petition is maintainable

It is submitted before the hon'ble court that Mr Raymond ken hereinafter referred as applicant is a respected man in the society having large channel of fast food restaurant across the country.The applicant is the father of the minor's as such as every rights to file instant application for the custody of children namely Lisa ken and Aliya ken Yes , the instant application is made under section 9(1) of Guardianship and Ward Act, 1890 is maintaineable for the custody of children and the instant court has full jurisdiction to decide the issue. Apt. to mention here that in 2006 the applicant and Mrs Oriyana divorce and also took the daughter with her. And later on the applicant file a case for the custody in which the honorable court has decided that the children should stay with mather/ Respondent till they attain the age of 7 years. And applicant was granted the visitation right. The Respondent was the member of International organisation (LGBT) working has a Regional Director in the org. and she was suspended from the organisation because of the, non- applicant/ Respondent is habitual drinker and most of the time she does not remain in her right senses because of which the life of daughter have been not less then a hell. She is not taking care of her daughters, she has no right to ruin her daughter life.

In Dec. 2019 Lisa the daughter of applicant told her father that both of them wantto come and live with them.The reason for the same is that the Respondent is not taking care of her daughter and spoiling their future and thier are under constant fear is that habitual drinking habit of her mother, may impact them physical and psychological. The instant application is not time barred.It is Apt to mention that both the girl have crosed the age of 7 years as such as bar created by as such as bar created by case hon'ble court in the previous case that the children should stay with their mother till they attain the age of7 yrs. Has not been their being the father of the girl it is inherent right of to enrished her daughter to best way possible and also the girl showing the willingness and as such custody of the daughters point to reason here in above In Ruchi Manoo v Sanjeev Majoo 2011 6 Scc 479 where apex court held that test to determine the jurisdiction of court to enertain the application of guardianship of

minor is the place of ordinary residence of a minor While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, Sheoli Hati v. Somnath Das, (2019) 7 SCC

It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940

Issue 2. Whether the principle of res judicata is applicable. No , res judicata will not be applicable keeping in mind the welfare of the children and change in the circumstances of the case It is submit before hon'ble court that the application is not hit by the principal of res judicata. And the instant application same does not seem to be followed , in the leading case of Duchess of Kingstone case wherein Sir William de grey made the following remarkable observation::;

"From the variety of case relative to judgements being given in evidence in civil suit, these two deduction seem to follow as generally true:: Firstly, that judgement of a court of concurrent jurisdiction, directly upon the point,is, as a plea , a bar, or as evidence conclusive , between the same parties, upon the same matter , directly in guestion in another court : Secondly, that the judgement of court of exclusive jurisdiction , directly on point, is, in like manner , conclusive upon the same matter , between the same parties , coming incidentally in question in another court, for a different purpose" The principle of res Judicata applies to static suitition that one decided will not have new to be disposed. It has no applicability to changing circumstances. Mrs Oriyana was granted the custody right in previous case but court had made observation that children should stay with mother/Respondent till they attain the age of 7 years. The children have crossed the 7 years bar. The change of circumstance and non applicability of the principle of res judicata be guaged from the fact that Respondent was not drinker earlier and now she was a habitual drinker because of which life of children at stake and she was suspended from her org. Where she was working has Regional Director .She is currently under rehabilitation counsel of others How can.

woman raise her children well when she herself was under the counsel for rehabilitation. The basic purpose of the custody is the welfare of the children and when the same is was not achieved as such the intervention is needed In D.K.C PETITIONER V. K.C & others (Delhi High court ) res judicata is not applicable. It is equally well settled law that the doctrine of res judicata is not applicable In matter of chlid custody In ROSY Jacob V Jabcob A Chakramakkal (AIR ,1973 Sc 2090) this court considered the nature of custody of minor under the provisions of Guardian and Ward Act 1890 and application of doctrine of res judicata / estoppel in respect of the same as held as under The appellant argument based on estopple and on the order's made by the court under the Indian divorce act with respect to the custody of the children did not appeal to us All orders relating to the custody of the minor ward from their very nature must be considered to be temporary orders made in the existing circumstances with the changed condition and circumstance including the passage of time the courts in entiti to vary such order if such variations is considered to be in the interest of the welfare of the ward In DR Ashish Ranjan petitioner V Anupama Tandon Anr. Contemnors/s ,, court said the doctor res judicata is not

applicable in matters of child custody and criminal case pending between parties and dissolved the marriage. And in another case law Bihar State Govt. Secondary school Teacher association v. Ashok kumar sinha and other ,,, principle of res judicata is not applicable in matter of child custody PRAYER FOR RELIEF In the light of the issue raised , argument, case citied in front of the Hon'ble District Court of Delhi , the appellant request this Honorable court

. Entertain the appeal petition . Grants the custody of children to the appellant . Pass any other order that it deem fit in the interest of Justice, Equity, and Consciences

Fow which the counsel on behalf of the appellant will forever be duty bound and obliged I