TEAM CODE: TC_101

GURUCHARAN DAS MEMORIAL

1ST NATIONAL MOOT COURT COMPETITION,2024

IN THE HON’BLE SUPREME COURT OF NEW BHARAT

UNDER ARTICLE 133 OF THE CONSTITUTION OF NEW BHARAT

IN THE MATTER BETWEEN

MR. AARAV……………………………………………………………….APPELLANT

V.

MS. ZARA & ORS…………………………………………………………RESPONDENT

MEMORIAL FILED ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

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 TABLE OF CONTENTS

TOPIC PAGE NO.

1. LIST OF ABBREVIATIONS 3-5

2. INDEX OF AUTHORITIES 6-8
3. STATEMENT OF JURISDICTION 9
4. STATEMENT OF FACTS 10-11
5. ISSUES RAISED 12
6. SUMMARY OF ARGUMENTS 13-14
7. ARGUMENTS ADVANCED 15-33
8. PRAYER 34

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 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And

A.I.R All India Reporter

ALL. Allahabad

Anr. Another

A.P. Andhra Pradesh

Art. Article

Auth. Authority

Bom Bombay

Const. Constitution

CRC The Convention on the Rights of the Child

Ed. Edition

Govt. Government

Guj. Gujarat

GWA Guardians and Wards Act

H.C High Court

HMA The Hindu Marriage Act

HMGA Hindu Minority and Guardianship Act

Hon’ble Honorable

i.e. That is

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 ICCPR International Covenant on Civil and
Political Rights

ICESCR International Covenant on Economic,

Social and Cultural Rights

IDA Indian Divorce Act

IPC Indian Penal Code

I.T Act Information Technology Act

Ld. Learned

Ltd. Limited

M.P. Madhya Pradesh

No. Number

Ors. Others

Para Paragraph

Pg. Page No.

Raj. Rajasthan

ss. Sections

Sec Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R Supreme Court Reports

S.C.W Supreme Court Weekly

S.M.A Special Marriage Act

Supp. Supplement

T.N. Tamil Nadu

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 Tri Tripura

u/s under section

U.P. Uttar Pradesh

U.S. United States

U.T. Union Territory

U.O.I Union of India

UDHR Universal Declaration of Human Rights

UNCRC United Nations Convention on the Rights of

the Child

v. Versus

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 INDEX OF AUTHORITIES

INDIAN CASES
➢ Aman Lohia v. Kiran Lohia, 2021 SC 203.
➢ Anil Kumar Jain v. Maya Jain, AIR 2009 SCW 5899.
➢ Anuj Chaturvedi v. Jyothi, Special Leave to Appeal (C) Nos. 6303 of 2017. D/d
4.10.2019.
➢ Chethana Ramatheertha v. Kumar V. Jahgirdar, AIR 2004 SC 1525.
➢ Debika Chakraborty v. Pradip Chakraborty, AIR 2017 Calcutta 11.
➢ Gobind Singh v. State of M.P., AIR 1975 SC 1378.
➢ Gobind Singh v. State of Madhya Pradesh, AIR 1975 SC 1378.
➢ Hiren Bhai Shelat v. P.J. Shelat, AIR 1978 Guj 113.
➢ Jaharlal Das v. State of Orissa, AIR 1991 SC 1388.
➢ Justice K.S.Puttaswamy (Retd) v. Union of India, AIR 2015 SC 3081.
➢ K.G. v. State of Delhi, W.P. (Crl.) No. 374/2017.
➢ K.M. Vinaya v. B.R. Srinivas, (2015) 16 SCC 405.
➢ Kanika Goel v. State of Delhi Miscellaneous Application No. 2487-2492 Of 2018 in
Criminal Appeal No.635-640 Of 2018.
➢ Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
➢ Lata Singh v. State of Uttar Pradesh. (2006) 5 SCC 475.
➢ Laxmibai Chandaragi B v. State of Karnataka writ petition (crl.) no. 359 of 2020.
➢ M.G. Baddapanavar v. State of Karnataka, AIR 2001 SC 260.
➢ Maneka Gandhi v. Union of India, AIR 1978 SC 597.
➢ Maneka Gandhi v. Union of India, AIR 1978 SCR (2) 621.
➢ Nemichand v. Khemraj, AIR 1973 RAJ 240.

➢ Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413: AIR 2009 SC (Supp) 732.
➢ R. Rajagopal v. State of T.N., AIR 1995 SC 264.
➢ Ram Murti Saran v. State of U.P. and Ors., AIR 1971 ALL. 54.
➢ Rohith Thamanna Gowda v. State of Karnataka, (2022) 4 S.C.R 784
➢ S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.
➢ S.R. Bommai v. Union of India, 1994 SCC (3) 1.
➢ Salamat Ansari v. State of Uttar Pradesh. W.P. No. 11367 of 2020.
➢ Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562.

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 ➢ Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
➢ Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368.
➢ Shakti Vahini v. Union of India, AIR 2018 SC 1601.
➢ Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62.
➢ Sri Arun Das v. Smt. Aparna Das, AIR ONLINE 2021 Tri 115.
➢ Tatineni Mayuri v. Edara Baldev, (Civil Appeal Nos. 2471-2473 of 2016).
➢ Unni Krishnan v. State of Andhra Pradesh (1964) 1 SCR 332.
➢ V. Bhagat v. D. Bhagat, (1994) SCC (1) 337.
➢ Vasudha Sethi v. Kiran V. Bhaskar (Criminal Appeal No. 22 of 2022).
➢ Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67.

INTERNATIONAL CASES

➢ Allgeyer v. Louision, (1897) 165 U.S. 578.

➢ Olmstead v. U.S., (1928) 277 US 438, 478

STATUTES

➢ The Constitution of New Bharat.

➢ The Family Courts Act, 1984.
➢ The Guardians and Wards Act, 1890.
➢ The Hindu Marriage Act, 1955.
➢ The Hindu Minority and Guardianship Act, 1956
➢ The Indian Divorce Act, 1869.
➢ The Information Technology Act, 2000 (Act 21 of 2000)
➢ The Penal Code of New Bharat, 1860 (Act 45 of 1860)
➢ The Special Marriage Act, 1954.

BOOKS

➢ M.P. Jain, Indian Constitutional Law 907 (Kamal Law House, Calcutta, India, 8thedn.,
2018).
➢ Dr. J. N. Pandey, Constitutional Law of India 291 (Central Law Publication, 30-D/1 ,
Moti Lal Nehru Road ,Prayagraj, India , 60th edn., 2023).

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 ➢ KD Gaur, Textbook on Indian Penal Code, 1423 (Universal Law Publishing - An
Imprint of Lexis Nexis, Gurgaon-122002, Haryana, India, 8th., 2023).
➢ Ratanlal and Dhirajlal, The Indian Penal Code, 607 and 865 (Universal Law Publishing
- An Imprint of Lexis Nexis, Gurgaon-122002, Hariyana, India, 36th edn., 2019).

DICTIONARY

➢ Oxford Dictionary

OTHER AUTHORITIES

CONVENTION

➢ International Covenant on Civil and Political Rights, 1976

➢ United Nations Convention on the Rights of the Child, 1989
➢ Universal Declaration of Human Rights, 1948

WEBSITES

➢ https://www.scconline.com.
➢ https://www.manupatrafast.com.
➢ https://indiankanoon.org.
➢ https://legalserviceindia.com/legal/article.html.
➢ https://www.livelaw.in.
➢ https://blog.ipleaders.in.

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of New Bharat has the jurisdiction in this matter under Article 133
of the Constitution of New Bharat.

Article 133 of the Constitution states thatS:

Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court in the territory of India if the High Court certifies under article
134A-

(a)that the case involves a substantial question of law of general importance; and

(b)that in the opinion of the High Court the said question needs to be decided by the Supreme
Court.

(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of law as
to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one
Judge of a High Court.

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 STATEMENT OF FACTS

➢ A matrimonial dispute between an inter-religious couple unfolds.

1. In the city of Gaunagar (State of Nilachal Pradesh) New Bharat, renowned for its
cultural diversity, a matrimonial dispute unfolds between two individuals, Aarav (a
Hindu) and Zara (a Muslim), who entered into an inter-religious marriage despite
vehement opposition from their families.
➢ A genuine bond of love and affection despite societal expectation and opposition.
2. The day Zara stepped into Aarav's home, met with a cold reception as the family, deeply
rooted in tradition, could not fathom the union of their son with someone from a
different faith. As days turned into weeks, the disdainful gazes of the family strangely
transformed into care and affection. Aarav's family now got to know that Zara is the
only Daughter of a renowned businessman of the city. Driven by greed and societal
status, Aarav's family showered Zara with feigned affection, masking their true
intentions behind a facade of hospitality. However, Zara, with her discerning eyes,
could see through the charade, and in deep beneath yearned for genuine acceptance and
love of family which money could not buy.
3. Despite of so many challenges and different attempts of radical groups to nullify their
marriage, Aarav and Zara stood united by the threads of their genuine affection and
found solace in each other's support. And as time flew by, five years had passed since
their marriage and by the time they have also been blessed with, 'Aashi'...their girl child
aged 3 years.
➢ The couple was dealt with a cruel fate.
4. One day, Aarav's childhood best friend, Raj, who had become well-settled in Canada,
visited India, and Aarav was overjoyed to see him after so many years. Raj proposed
Aarav and Zara to visit the serene hill station of "Rasauli", to which both Aarav and
Zara eagerly agreed upon. It was the first time in years that Aarav and Zara were going
somewhere together, leaving behind the weights of their troubles.
5. As the trio embarked on their journey to 'Rasauli, Aarav and Zara were filled with an
unparalleled sense of happiness. But cruel fate dealt them a sharp blow. It seemed like
someone had cast an evil eye on Aarav and Zara's blissful abode!
6. A private moment captured on video, meant only for their eyes, was maliciously leaked
onto social media, tarnishing their reputation beyond repair and leading to character

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 assassination and threats. Overnight, Aarav and Zara's settled world shattered, leaving
them reeling in disbelief and despair.
➢ The petition for divorce by Mrs. Zara
7. Subsequently Zara fell victim to the radical group of her faith and filed for divorce
before the Family Court of Gaunagar on the ground of irreconcilable differences due to
religious disparities, invasion of privacy through online platforms. Zara accuses Aarav
of posting sensitive information on social media and also alleges of cyber stalking,
however, Aarav insists on maintaining the union.
➢ The judgment of Learned Family Court later upheld by the Hon’ble High Court
8. The Family Court granted a divorce. Moreover, a significant portion of the marital
assets and the custody of the minor children was given to Zara, and the High Court of
Nilachal Pradesh upheld the decision of the family court.

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 ISSUES RAISED

ISSUE 1: HOW DOES THE COURT BALANCE THE RIGHT TO RELIGIOUS

FREEDOM AGAINST SOCIETAL EXPECTATIONS AND OPPOSITION IN THE
CONTEXT OF INTER-RELIGIOUS MARRIAGES?

ISSUE 2: TO WHAT EXTENT CAN THE INFORMATION TECHNOLOGY ACT, 2000,

BE INVOKED TO PROTECT INDIVIDUALS FROM MISUSE OF PERSONAL
CONTENT ON SOCIAL MEDIA PLATFORMS?

ISSUE 3: WHAT CONSIDERATIONS SHOULD BE TAKEN INTO ACCOUNT WHEN

INTERPRETING FAMILY LAW PROVISIONS IN THE CONTEXT OF INTER-
RELIGIOUS MARRIAGES AND DIVORCE?

ISSUE 4: TO WHAT EXTENT SHOULD THE COURT CONSIDER EACH PARENT’S

INVOLVEMENT IN THE CHILDREN’S LIVES WHEN DETERMINING CUSTODY
ARRANGEMENTS?

ISSUE 5: HOW DOES THE COURT ASSESS THE EQUITABLE DISTRIBUTION OF

MARITAL ASSETS, AND WHAT CONSIDERATIONS SHOULD BE WEIGHED IN THE
CONTEXT OF THIS CASE?

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 SUMMARY OF ARGUMENTS

ISSUE 1: HOW DOES THE COURT BALANCE THE RIGHT TO RELIGIOUS

FREEDOM AGAINST SOCIETAL EXPECTATIONS AND OPPOSITION IN THE
CONTEXT OF INTER-RELIGIOUS MARRIAGES?

It is humbly submitted before the Hon’ble Supreme Court of New Bharat that The Special
Marriage Act,1954 provides a legal framework for the marriage of people belonging to
different religions or castes. But societal expectations and opposition, leading to interference
in law in the context of inter faith marriage has infringed the fundamental rights of the appellant
guaranteed by the Constitution under Article 14, 21 and 25. Despite of the legislature giving
freedom of choice of partner, the societal expectations, opposition and stigma related to inter
religious marriages cause infringement of several fundamental rights.

ISSUE 2: TO WHAT EXTENT CAN THE INFORMATION TECHNOLOGY ACT, 2000,

BE INVOKED TO PROTECT INDIVIDUALS FROM MISUSE OF PERSONAL
CONTENT ON SOCIAL MEDIA PLATFORMS?

It is humbly submitted before the Hon’ble Supreme Court of New Bharat that the Information
Technology Act,2000 gives the individuals the right to seek remedies in case of misuse of their
personal content on social media. In the present matter the appellant has been wrongfully
accused by the respondent for posting sensitive information on social media cyber stalking but
the appellant being a reasonable man of sound mind and dignity is incapable of posting
sensitive information on social media through online platforms, provided he is an eminent party
to the video. Thus he seeks the review of the application of Section 66E and 67A due to the
infringement of his privacy rights.

ISSUE 3: WHAT CONSIDERATIONS SHOULD BE TAKEN INTO ACCOUNT WHEN

INTERPRETING FAMILY LAW PROVISIONS IN THE CONTEXT OF INTER-
RELIGIOUS MARRIAGES AND DIVORCE?

It is humbly contented that The Special Marriage Act, 1954 provides a legal framework for the
marriage of people belonging to different religions or caste. It must be taken into considerations
when interpreting family law provisions in the context of inter-religious marriages that the
consent of the family or the community or the clan or the state or executive is not necessary,
once the two adult individuals enter into a wedlock which is lawful and legal. But in the context

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of the present circumstances the interpretation of family law that led to grant of divorce is
lacking of adequate consideration as there was no irreconcilable differences due to religious
disparity and the appellant was not an offender of invasion of privacy rather he is a sufferer.

ISSUE 4: TO WHAT EXTENT SHOULD THE COURT CONSIDER EACH PARENT’S

INVOLVEMENT IN THE CHILDREN’S LIVES WHEN DETERMINING CUSTODY
ARRANGEMENTS?

It is humbly submitted before the Hon’ble Supreme Court of New Bharat that the Court must
consider both parent’s involvement in the children’s lives, In the present case, the Court must
consider the parental rights of the appellant and reject the sole custody of Aashi, their girl child
aged 3 to Mrs. Zara as this decision is violative to the parental right of the Mr. Aarav and this
decision is also promoting gender bias towards the father. Moreover awarding the sole custody
to the respondent is being the instances of hindrance to the overall welfare of the child. Thus
the Hon’ble Court should adequately consider the appellant’s parental rights in involvement in
the child’s life based on the welfare and best interest of the child.

ISSUE 5: HOW DOES THE COURT ASSESS THE EQUITABLE DISTRIBUTION OF

MARITAL ASSETS, AND WHAT CONSIDERATIONS SHOULD BE WEIGHED IN
THE CONTEXT OF THIS CASE?

It is humbly and respectfully submitted before the Hon’ble Supreme Court of New Bharat that
Courts consider many factors when deciding how to divide up property under equitable
distribution rules. In the present case Learned Family Court did not adequately analyses the
marital assets, liabilities and contribution of the parties for which Mr. Aarav was unfairly
disadvantaged and the decision also violated the rule of natural justice.

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 ARGUMENTS ADVANCED

ISSUE 1: HOW DOES THE COURT BALANCE THE RIGHT TO RELIGIOUS

FREEDOM AGAINST SOCIETAL EXPECTATIONS AND OPPOSITION IN THE
CONTEXT OF INTER-RELIGIOUS MARRIAGES?

1.1 It is humbly and respectfully submitted before the Hon’ble Supreme Court of New Bharat that
societal expectation promotes endogamy. Inter-religious marriages are a stigma in the society as it
is mostly believed to be a matter of forced conversion. In contradiction to societal expectation of
an opposition in the context of inter religious marriages the legislature has enacted special law to
provide for a unique form of marriage by registration wherein the parties to the marriage do not
have to renounce their religion. The Special Marriage Act,19541 provides a legal framework for
the marriage of people belonging to different religions or castes. It governs a civil marriage where
the state sanctions the marriage rather than the religion. Societal values and morality have their
own space but they are not above the rule of law. One’s choices and decisions should be accepted
since they are theirs and the approval should not be in the hand of society. Contemplating laws to
regulate matrimonial relationships between two consenting adults would not be just against the
constitutional guarantees but would offend the very notion of individuality and basic freedoms.
Interference of the law in an individual’s choice of marriage violates the existing constitutional
rights such as the Right to Equality, Right to Life & Personal Liberty, and Right to Freedom of
Religion.

1.2 It is humbly and respectfully submitted that the Constitutional rights of the appellant,
has been infringed in the following ways:

➢ Violation of equality before law under Article 14.2

The legislature mandates to validate and register inter-religious and inter-caste marriages but in
the present case, the appellant has been encroached upon his fundamental rights as the Family
Court granted a divorce on the ground of irreconcilable differences due to religious disparities.
Judiciary is that branch of the government which is bound to interpret the law, settle disputes, and
administer justice to all the citizens but in the present matter the appellant is deprived of
maintaining the union despite of the legislature protecting the union of inter-religious couple

1. The Special Marriage Act, 1954.

2. The Constitution of New Bharat, Article. 14.

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 through Special Marriage Act, 1954.3 The Hon’ble Family Court granted the divorce based on
irreconcilable differences due to religious disparities. The term ‘disparity’ refers to a difference
in level or treatment, especially one that is seen as unfair.4 Firstly, the stated ground of divorce
does not fall under the provision of Section 27 of the Special Marriage Act, 1954 subject to
which a petition for divorce may be presented to the District Court. Secondly, there are no
instances of religious disparities among the couple to such extent that it should lead to divorce.
It may be noted that the right to equality has been declared by the Supreme Court as a basic
feature of the Constitution. The Constitution is wedded to the concept of equality. The Preamble
to the Constitution emphasizes upon the principle of equality as basic to the Constitution.
Neither Parliament nor state legislature can transgress the concept of equality. Further, it was
held in M.G. Baddapanavar v. State of Karnataka5 that “Equality is a basic feature of the
Constitution...”.
➢ Violation of right to privacy and personal liberty under Article 216
Right to Privacy has been held to be constitutionally protected fundamental rights. 7 Right to
Privacy is vested within right to life and personal liberty under Article 21 of the Constitution.8
A citizen under this right has the right to protect and safeguard the liberty of his own, his family,
marriage, procreation, motherhood, childbearing and education among the matters.9 Article 21
protects the dignity of human life, one’s personal autonomy, one’s right to privacy etc. Right
to dignity has been recognized to be an essential part of the right to life. The right to marry a
person of one’s choice is integral to Article 2110 which states Right to Life. The right of an
individual’s choice to marry11 whom he/she pleases is an inherent part of individuals dignity
and intrinsic to Article 21.12 Decision of an individual who is of the age of majority, to live with
an individual of his/ her choice is strictly a right of an individual and when this right is infringe
it would constitute breach of his/ her fundamental right to life and personal liberty as it includes
right to freedom of choice, to choose a partner and right to live with dignity as enshrined in
Article 21 of the Constitution.13

3. The Special Marriage Act, 1954.

4. Oxford Dictionary.
5. M.G. Baddapanavar v. State of Karnataka, AIR 2001 SC 260.
6. The Constitution of New Bharat, art. 21.
7. Gobind Singh v. State of Madhya Pradesh, AIR 1975 SC 1378.
8. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
9. Unni Krishnan v. State of Andhra Pradesh (1964) 1 SCR 332.
10. The Constitution of New Bharat, Article. 21.
11. Lata Singh v. State of Uttar Pradesh. (2006) 5 SCC 475.
12. Shakti Vahini v. Union of India, AIR 2018 SC 1601.
13. Salamat Ansari v. State of Uttar Pradesh. W.P. No. 11367 of 2020.

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 In Justice K.S.Puttaswamy (Retd) v. Union of India14, the Apex Court stated that right to choose
a life partner was a facet of right to privacy. The right to privacy also said that “the autonomy of
the individual is the ability to make decision on vital matters of concern to life”. In the present
matter, their families. The radical groups presented the couple with several challenges and attempts
to nullify their marriage. When cruel fate dealt them a sharp blow15, Mrs. Zara subsequently
fell victim to the radical group of her faith. This shows the constant harassment that appellant and
respondent had to go through despite of having the right to choose their partner.

➢ Violation of freedom of conscience and free profession, practice and propagation of religion
under Article 25.16

It is humbly and respectfully submitted that every person enjoys the right to freely practice and
profess one’s religion even if they choose a partner from a different religion. The right to choice of
marriage and right to religion are completely different aspects which every individual is entitled to
enjoy. In the present matter, Mr. Aarav and Mrs. Zara being well aware of their religious differences
got married out of love and while filing for divorce Mrs. Zara was influenced by radical groups of
her faith and stated irreconcilable differences due to religious disparities as a ground. Thus, violating
Mr. Aarav’s fundamental rights under Article 14,21 and 25 of the Constitution of New Bharat. 17 In
the case of Shafin Jahan v. Asokan K.M.,18 wherein the Supreme Court had highlighted the right
of every individual to marry a person of his or her choice. The Court reiterated that the choice to
choose a life partner could not in any way be affected by matters of faith and religion, especially
when the Constitution guaranteed to each individual the right to freely practice, profess and
propagate any religion, and it also guaranteed every individual the autonomy for these aspects in
matters of marriage. The Court opined that it was not for the State or the society or even the parents
of the parties involved to, in any way, dictate the choice of life partner of a person or curtail and
limit such rights of an individual when it involved two consenting adults.19

14. Justice K.S.Puttaswamy (Retd) v. Union of India, AIR 2015 SC 3081.

15. Statement of Facts, Para 5.
16. The Constitution of New Bharat, Article. 25.
17. The Constitution of New Bharat, Articles. 14, 21, 25.
18. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368.
19. Laxmibai Chandaragi B v. State of Karnataka writ petition (crl.) no. 359 of 2020.

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1.3 It is pertinent to mention that several International Laws read with Article 51(c)20 of the
Constitution must be duly noted:

▪ Article 16(1) of Universal Declaration of Human Rights, 194821 stipulates that, “Men and
women of full age, without any limitation due to race, nationality or religion, have the right
to marry and to found a family.” It recognises the right to marry as a human right.
▪ Article 16(3) of Universal Declaration of Human Rights, 194822 stipulates that, “The family
is the natural and fundamental group unit of society and is entitled to protection by society
and the State”.
▪ Article 18 of Universal Declaration of Human Rights, 194823 states that, “Everyone has the
right to freedom of thought, conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in community with others and in public
or private, to manifest his religion or belief in teaching, practice, worship and observance”.
▪ Article 17(1) of International Covenant on Civil and Political Rights(YEAR)24 states that “No
one shall be subject to arbitrary or unlawful interference with his privacy, family, human
or correspondence, nor to lawful attacks on his honour and reputation”.
▪ Article 23(2) of International Covenant on Civil and Political Rights25 states that “the right
of men and women of marriageable age to marry and to found a family shall be
recognized”.

1.4 The societal expectation and opposition in context of inter-religious marriages is in itself
contradictory to the secular structure of the country which respects the “liberty of thought, belief,
faith and worship”. In S.R. Bommai v. Union of India26, the Supreme Court has held that
“Secularism” is a basic feature of the Constitution. The law governs inter-faith marriages in
country is Special Marriage Act, 1954.27 As one can marry other person from different religions
by the procedure of civil court.

20. The Constitution of New Bharat, Article. 51(c).

21. Universal Declaration of Human Rights, 1948, Article. 16(1).
22. Universal Declaration of Human Rights, 1948, Article. 16(3).
23. Universal Declaration of Human Rights, 1948, Article. 18.
24. International Covenant on Civil and Political Rights,1976, Article. 17(1).
25. International Covenant on Civil and Political Rights,1976, Article. 23(2).
26. S.R. Bommai v. Union of India, 1994 SCC (3) 1.
27. The Special Marriage Act, 1954.

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1.5 Religion is a foundation for value and moral based survival of human being. If there were no
values or morals, there would be no social order. It is the right of one’s to practice profess and
propagate religion of its choice. Hence, when one can practice any religion of one’s choice then
one can marry other person of different religions also by the procedure of civil court and if anyone
is expelling members for marrying outside the community will violate several fundamental rights
of the entitled to an individual under the Constitution.

ISSUE 2: TO WHAT EXTENT CAN THE INFORMATION TECHNOLOGY ACT, 2000 BE

INVOKED TO PROTECT INDIVIDUALS FROM MISUSE OF PERSONAL CONTENT
ON SOCIAL MEDIA PLATFORMS?

2.1 It is humbly and respectfully submitted before the Hon’ble Supreme Court of New Bharat
that the Information Technology Act,200028 can be certainly invoked to protect individuals from
the misuse of personal content on social media platforms.

2.2 In the present case there are certain scenarios that are to be duly noted:

➢ The court shall find the appropriate offender responsible for invasion of privacy of the
couple
It is pertinent to mention that a private moment captured on video, meant only for their
eyes, was maliciously leaked on to social media. It seemed like someone had cast an evil
eye on Aarav and Zara’s blissful abode.29 Thus, it is humbly pleaded before the Hon’ble
Court to hold the appropriate offender responsible for maliciously circulating the video clip
on social media.
➢ The appellant is a victim of invasion of privacy
It is humbly and respectfully submitted that the appellant has been wrongfully accused of
invasion of privacy through online platform rather he is a victim of it. The circulation of
private video clip infringes upon his privacy right, being an eminent party to the video and a
reasonable man of sound mind it would be a grave error to hold him responsible for such
offence on the basis of mere accusation.

28. Information Technology Act, 2000.

29. Statement of Facts, Para 5,6.

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 ➢ The appellant humbly contend that the circulation of private video clip infringes upon
his privacy right
Right to Privacy is vested within Right to life and personal liberty under Article 21.30 Right to
life enshrined in Article 21 has been liberally interpreted so as to mean something more than
mere survival and mere existence or animal existence.31 It therefore includes all those aspects
of life which go to make a man's life meaningful, complete and worth living.
The Right to Privacy is not just a common law right, not just a legal right, not just a
Fundamental Right under the constitution. It is a natural right inherent in every individual.
Privacy with its attendant values assures dignity to the individual and it is only when life can
be enjoyed with dignity can liberty be of true substance. As stated in recent judgment of Right
to Privacy's, “To live is to live with dignity.”32 In Gobind Singh v. State of M.P33 the Supreme
Court, through a three-judge bench stated that privacy is a concern for an individual and is a
part of the concept of liberty. Furthermore, in the case of R. Rajagopal v. State of T.N.34 more
popular as the Auto Shankar case, the scope of right to be left alone was widened. The bench
of the Supreme Court, decided to give a constitutional status to Right to Privacy stating that it
is "implicit in the right to life and personal liberty". The personal liberty in Art.21 is of the
widest amplitude and it covers a variety of rights which go to constitute the personal liberty35,
secrecy36, human dignity37, limited and protected communication. The Supreme Court also
interpreted the concept of right to life to mean right to dignified life in Kharak Singh Case.

2.3 It is humbly and respectfully submitted that the appellant seeks a review of the application
of relevant provision under Information Technology Act, 2000.38
➢ Punishment for violation of privacy under Section 66E of Information Technology Act,
2000.
“Whoever, intentionally or knowingly captures, publishes or transmits the images of a
private area of any person without his or her consent, under circumstances violating the
privacy of that person, shall be punished with imprisonment and fine”.

30. The Constitution of New Bharat, Article. 21.

31. Maneka Gandhi v. Union of India, AIR 1978 SCR (2) 621.
32. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2015 SC 3081.
33. Gobind Singh v. State of M.P., AIR 1975 SC 1378.
34. R. Rajagopal v. State of T.N., AIR 1995 SC 264.
35. Kharak Singh v. State of U.P., AIR 1963 SC 1295.
36. Allgeyer v. Louision, (1897) 165 U.S. 578.
37. Olmstead v. U.S., (1928) 277 US 438, 478; Maneka Gandhi v. Union of India, AIR 1978 SC 597.
38. Information Technology Act, 2000.

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 This section ensures a gender-neutral approach to bodily privacy and recognizes a specific
punishment for infringement of bodily privacy irrespective of gender. The appellant must not
be held liable under this section as the publication of video has infringed upon his right to
privacy guaranteed under Article 21 of the Constitution.39 The learned Family Court fail to
appreciate the fact that an appellant himself is the sufferer. Provided when the same matter was
appealed before the Hon’ble High Court of Nilachal Pradesh the Hon’ble High Court failed to
provide remedies when the fundamental rights of the appellant were infringed.

➢ Punishment for publishing or transmitting of material containing sexually explicit act., in

electronic form under Section 67A of Information Technology Act, 200040
The appellant must not be held liable under this section just based on the fact that he was accused
by the respondent. The appellant is a reasonable man of sound mind and dignity and it is absurd to
assume that he is responsible for circulating the video clip. The appellant is being accused based
on circumstantial evidence but as per the guidelines in the case of Jaharlal Das v. State of
Orissa,41 the Hon’ble Supreme Court had decided that; when we take circumstantial evidence as
the evidence of an offence, it must satisfy three conditions:
(i) While proving the guilt of an accused, the circumstances that led towards his guilt need
to be established beyond reasonable doubt.
(ii) The circumstances should have a definite tendency to prove the guilt of an accused.
(iii) Take all the circumstances cumulatively and they should form a chain of that offence
and there should be no chance to escape from the conclusion.

The publication of private video has resulted to the infringement of his privacy rights and the
appellant seeks a review of the application of relevant provisions under the Information
Technology Act, 2000.

2.4 It is humbly and respectfully submitted that the following provisions of Indian Penal
Code, 186042 are relevant to the instant matter.

➢ Violation of Section 499 of Indian Penal Code, 1860

It is humbly contended that in defamation cases, the publication of defamatory material is an

important aspect that needs to be established.

39. The Constitution of New Bharat, Article 21.

40. Information Technology Act, 2000.
41. Jaharlal Das v. State of Orissa, AIR 1991 SC 1388.
42. The Indian Penal Code, 1860, s. 499.

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 The term "publication" refers to making the defamatory material available to a third party, either
intentionally or negligently. The publication is to be considered defamatory only when it
decreases the reputation of someone before other persons.43 The appellant was defamed and his
reputation was tarnished beyond repair leading to character assassination and threats. Due to the
circulation of private video he had to face injury to his reputation leading to mental harassment
and turmoil.
➢ The appellant must not be held liable under Section 354D44
It is pertinent to mention that the respondent accused the appellant of cyber stalking without any
valid evidence. The appellant must not be held liable based on vague and mere accusation.

Thus, it is humbly and respectfully submitted that the circulation of private video clip infringes
upon the appellant privacy life and the relevant provision of the Information Technology Act,
200045 must be reviewed and invoked accordingly.

ISSUE 3: WHAT CONSIDERATIONS SHOULD BE TAKEN INTO ACCOUNT WHEN

INTERPRETING FAMILY LAW PROVISIONS IN THE CONTEXT OF INTER-
RELIGIOUS MARRIAGES AND DIVORCE?

3.1 Inter-religious marriages and divorce falls under the ambit of Special Marriage Act, 1954. 46
The Special Marriage Act, 1954 provides a legal framework for the marriage of people belonging
to different religions or caste. It governs a civil marriage where the state sanctions the marriage
rather than the religion. This enactment of solemnizing marriage by registration is resorted to by
Hindus, Non-Hindus and foreigners marrying in the country who opt out of the ceremonial
marriage under their respective personal laws. These inter-religious marriages are solemnized
under Section 4 of the Special Marriage Act, 1954 which states conditions relating to
solemnization of special marriages. It must be taken into considerations when interpreting
family law provisions in the context of inter-religious marriages that the consent of the family or
the community or the clan or the state or executive is not necessary, once the two adult individuals
enter into a wedlock which is lawful and legal.

43. Nemichand v. Khemraj, AIR 1973 RAJ. 240.

44. The Indian Penal Code, 1860 s. 354D.
45. Information Technology Act, 2000.
46. The Special Marriage Act, 1954.

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3.2 The absolute right of an individual to choose a life partner is not in the least affected by
matters of faith. The marriage of two adults are complete matter of their own choice, neither a
law is to impose any decision nor any individual.47

3.3 Intimacies of marriage and divorce lie within a core zone of privacy which is inviolable. It
must be taken into consideration that there are several grounds based on which the court shall
pass a decree to dissolve the marriage of an inter-religious couple. Section 27 of the Special
Marriage Act, 1954 states the grounds based on which a petition for divorce may be
presented by either husband or wife.

3.4 In the present matter it is pertinent to mention that two individuals Mr. Aarav (a Hindu)
and Ms. Zara (a Muslim) entered into an inter-religious marriage despite vehement
opposition from their families.48 Their marriage was solemnized under Special Marriage Act,
1954 as they continued to follow their own religion.

3.5 In the instant matter, the following consideration should be taken into account while
interpreting family law provision in the context of inter-religious marriage and divorce:

➢ No irreconcilable differences due to religious disparities

It is humbly and respectfully submitted that the present matrimony faced vehement
opposition from their families. The respondent was met with cold reception in the
beginning as the appellant’s family is deeply rooted in tradition and they could not
fathom the union of their son with someone from a different faith.49 The present facts
are actually quite natural considering the societal expectations, opposition and stigma in
context of inter-religious marriages. Throughout the appellant’s and respondent’s conjugal
life there wasn’t any instance where the couple let the opposition and stigma win resulting
to irreconcilable differences due to religious disparities rather they stood united by the
threads of their genuine affection and found solace in each other’s support.50 The filing
for divorce is immaterial as Mrs. Zara fell victim to the radical group of her faith51 who
since the beginning of the matrimony made several attempts to nullify their marriage.52

47. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368.

48. Statement of Facts, Para 1.
49. Statement of Facts, Para 2.
50. Statement of Facts, Para 3.
51. Statement of Facts, Para 7.
52. Statement of Facts, Para 3.

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 Thus, in their conjugal life of five years despite of challenges the respondent never felt that
they had irreconcilable differences due to religious disparities but suddenly she “fell
victim” to the radical group of her faith leading to filing her divorce.

➢ The appellant is not the offender of invasion of privacy of Mrs. Zara through online
platform rather he is the sufferer
It is humbly contended that Mrs. Zara accuses Mr. Aarav for invasion of privacy through
online platform as a private moment captured on video, meant only for their eyes, was
maliciously leaked into social media.53 It is pertinent to note that as mentioned in the fact
‘it seemed like someone had cast an evil eye on Aarav and Zara’s blissful abode’.54 The
appellant himself is an eminent party to the video and the video was maliciously leaked on
to social media, tarnishing their reputation beyond repair.55
Hence, it can be said that the appellant is the sufferer of invasion of privacy himself. Based
on mere accusation by the respondent Mr. Aarav cannot be held guilty. Thus, it is humbly
and respectfully pleaded before the Hon’ble Court to not hold Mr. Aarav guilty of invasion
of privacy as he is actually the sufferer.
➢ The decree of divorce needs to be revised
Section 34(2) of Special Marriage Act, 195456 that before proceeding to grant any relief under
this Act it shall be the duty of the Court in the first instance, in every case where it is possible
so to do consistently with the nature and the circumstances of the case, to make every endeavor
to bring about a reconciliation between the parties. In the instant matter, the Court has passed
a decree before making any effort to bring about a reconciliation between parties leading to a
breakdown of a family.
Section 9 of the Family Courts Act, 198457 states duty of Family Court to make efforts for
settlement. In the instant matter, the Family Court in the first instance did not assist and
persuade the parties in arriving at a settlement. These laws and judicial pronouncements
demonstrate the legal system's focus on reconciliation as a fundamental step in divorce
proceedings. The courts actively encourage resolving matrimonial disputes amicably to
preserve the sanctity of marriage.

53. Statement of Facts, Para 6.

54. Statement of Facts, Para 5.
55. Statement of Facts, Para 6.
56. The Special Marriage Act, 1954.
57. The Family Courts Act, 1984.

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3.6 Several judicial pronouncements that demonstrate the legal system's focus on
reconciliation as a fundamental step in divorce proceedings:
▪ Hiren Bhai Shelat v. P.J. Shelat58 (1978): The Supreme Court held that reconciliation
efforts are a mandatory duty of the court, and failure to comply with this requirement can be
a ground for appeal.
▪ Saroj Rani v. Sudarshan Kumar Chadha59 (1984): The Supreme Court emphasized the
importance of reconciliation and stated that the court must satisfy itself that all efforts for
reconciliation have been made before granting a decree of divorce.
▪ Anil Kumar Jain v. Maya Jain60 (2009): The Supreme Court reiterated the importance of
reconciliation and mediation in matrimonial disputes and highlighted that the courts should
make serious efforts for reconciliation between the parties.
▪ V. Bhagat v. D. Bhagat61 (1994): The Supreme Court stressed that reconciliation is a crucial
part of divorce proceedings and that every attempt should be made to resolve differences
before proceeding with the divorce.

Hence, the Hon’ble Family Court gravely erred in interpreting family law provision that led to
the grant of divorce and the Court did not adequately consider the unique circumstances of an
inter-religious marriage.

ISSUE 4: TO WHAT EXTENT SHOULD THE COURT CONSIDER EACH PARENT’S

INVOLVEMENT IN THE CHILDREN’S LIVES WHEN DETERMINING CUSTODY
ARRANGEMENTS?

4.1 It is humbly and respectfully submitted before the Hon’ble Supreme Court of New Bharat
that the Court must consider both parent’s involvement in the children’s lives, In the present
case, the Court must consider the parental rights of the appellant and reject the sole custody
of Aashi, their girl child aged 3 to Mrs. Zara.

4.2 The contentions of the appellant are as follows:

58. Hiren Bhai Shelat v. P.J. Shelat, AIR 1978 Guj 113.
59. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562.
60. Anil Kumar Jain v. Maya Jain, AIR 2009 SCW 5899.
61. V. Bhagat v. D. Bhagat, (1994) SCC (1) 337.

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➢ Awarding sole custody to Mrs. Zara showcases an irrelevant decisions of the Family
Court
The term “sole custody” comes into the scenario when one parent is proven to be unfit,
abusive, unstable, violent or incapable. Provided that parent has created scenarios that could
potentially substantiate the criteria’s. The appellant is a man who firmly believes on
maintaining the union as family and does not evidently fall into the above criteria.
The appellant contends that the Family Court erred in awarding sole custody to Mrs. Zara
without adequately considering his parental rights and involvement in the child’s right. The
subjective nature of standards while determining the custody of the minor may be perceived to
favor the mother but it is of paramount importance to determine the child’s best interests and a
comprehensive evaluation of all relevant circumstances must be done while deciding regarding
custody. The welfare of the child should be the primary consideration, ensuring the child’s
welfare and facilitate arrangements that promotes their holistic development and happiness.62
➢ Gender based biasedness in a child custody system towards fathers
It is pertinent to mention that when it comes to children, fathers are always viewed as
secondary parents, mothers replaced fathers as the ‘primary and irreplaceable care givers’ as
a result of the ‘feminization of the home front’. The stereotypes of mothers as domestic care
giver and main child rearing and males as the family principal provider has been prevalent in
the society. In most circumstances, all parties concerned assume that mother is the sole care
giver especially for small children while the father is stuck with only visitation rights because
of assumptions and prejudices that have been established in both parties.
In 2016, High Court of New Delhi set aside three orders passed by Family Court in child
custody case on the ground of ‘reasonable apprehension of bias’ while giving fathers only
right to visit his offspring only on “every Wednesday and Friday, and overnight stay of the
minor on every second and fourth Saturday”.63 In the case of Ms. Githa Hariharan & Anr
v. Reserve Bank of India & Anr64, The Apex Court recognized that gender equality is one
of the fundamental principles of the constitution.

62. Rohith Thamanna Gowda v. State of Karnataka, (2022) 4 S.C.R 784.

63. ‘apprehension of bias’: H.C. on judge conduct in child custody case (2022) The Indian Express, available at:
https://indianexpress.com/article/cites/delhi/apprehension-of-bias-hc-on-judge-conduct-in-child-custody-
case-7972481/ . Last visited June 16, 2022 03:48 IST.
64. Ms. Githa Hariharan & Anr v. Reserve Bank of India & Anr, AIR 1999 2 SCC 228.

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 The Apex Court rejected the broad generalization that a kid receives the best upbringing and
protection from their mother in an appeal and the assertion that a mother’s custody would
always be preferable to a father’s was explicitly rejected.65

“Men and Women aren’t the same. And they won’t be the same. That doesn’t mean that they
can’t be treated fairly.66 It is often clear that mother is always the court’s first choice for custody
while the father must always display his commitment to the child's development. This violates
the father's right to equality under Article 14 and 2167 of the Constitution and shows that the
judiciary is ignorant of the fact that most mothers who want custody of their children are much
more interested in the child support payments that go along with it, together with alimony.
When the father is discriminated on the basis of his potential as a parent, it certainly does not
resonate to a dignified life.68

In the instant matter not only the Family Court has awarded sole custody to Mrs. Zara without
adequate considering the appellant’s parental rights and involvement in the child’s life but also
gave a significant portion of the marital assets to her.

➢ Sole custody is a hindrance of certain International Rights of Child

▪ Article 18 of United Nations Convention on the Rights of the Child69 states that “State
Parties shall use their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child”.
▪ Article 3.170 of the United Nations Convention on the Rights of the Child requires “the
best interests of the child” to be the “primary consideration” “in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies”.

In the instant matter, the Family Court has stripped the appellant of his parental rights which is
not only violative for the appellant but is also a major hindrance in the overall welfare of the child.

65. Chethana Ramatheertha v. Kumar V. Jahgirdar, AIR 2004 SC 1525.

66. Jordan Peterson, “Jordan Peterson debate on the gender pay gap, campus protests and postmodernism”,
Interview by Newman, Cathy, Channel 4 News, Jan 16, 2018.
67. The Constitution of New Bharat, Articles. 14, 21.
68. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
69. United Nations Convention on the Rights of the Child, 1989 Articles. 18, 3.1.
70. The Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of the child.

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➢ Welfare of the child is of paramount concern in a custody battle: A joint custody is best
suited for the present case.
It is humbly and respectfully submitted that the appellant proves to be the sole parent
concerned with the welfare of the child as the appellant insisted on maintaining the union and
thus joint custody is best suited for the instant matter.
In the case of Vasudha Sethi v. Kiran V. Bhaskar71, the Supreme Court held that “a child’s
welfare, not the individual or personal legal right of the parents, is of paramount concern in a
custody battle. Welfare of the child must get precedence over the parents’ rights.” In the case
of K.M. Vinaya v. B.R. Srinivas72, the Karnataka High Court held that both parents must be
granted custody to aid sustainable growth of the child, and directed the parents to share all
the expenses of the child equally.
Section 17 of the Guardians and Wards Act, 189073 describes about the guidelines to be
considered consistently with law to which the minor is subject in appointing of the guardian,
for welfare of the minor.
Receiving love and affection from both the parents is a part of human rights that is vested
upon the child even though the parents are estranged and locked in a matrimonial dispute.74
The Apex Court also held in the case of Nil Ratan Kundu v. Abhijit Kundu75 that the
welfare of a child is not to be measured merely in terms of money or physical comfort, but
the word "welfare" must be taken in its widest possible sense so that the tie of affection cannot
be disregarded. The court observes parens patriae76 jurisdiction in child custody matters i.e.,
the problem has to be solved with a human touch where the paramount consideration is the
welfare of the minor child.77 The Bombay High Court in Carla Gannon v. Shabaz Farukh
Allarakhia,78 held that for determining the final decree, the child's welfare was the supreme
consideration, irrespective of the rights and wrongs that the parents contend. The courts must
not allow the determination to be clouded by the inter se disputes between the parties, and the
allegations and counter-allegations made against each other with respect to their matrimonial
life.79
71. Vasudha Sethi v. Kiran V. Bhaskar (Criminal Appeal No. 22 of 2022).
72. K.M. Vinaya v. B.R. Srinivas, (2015) 16 SCC 405.
73. The Guardians and Wards Act, 1890.
74. Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67.
75. Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413: AIR 2009 SC (Supp) 732.
76. A doctrine that grants the inherent power and authority of the states to protect persons who is legally unable
to act on their own behalf.
77. Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62.
78. Carla Gannon v. Shabaz Farukh Allarakhia, Criminal W P No. 509 of 2009 (BOM HC).
79. Smriti Madan Kansagra v. Perry Kansagra, Matrimonial Appeal (F C) No. 30 of 2018; Civil Miscellaneous
Application No.49507 of 2018.

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In K.G. v. State of Delhi, Court has held that the expression "best interest of child" used by
the Supreme Court in its decisions is wide in its connotation. It cannot be read as being only
the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child
who is only a few years old.80 As far as child custody is concerned, the issue ought not to be
decided on the basis of rights of the parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best interest of the minor child is served.81
The Supreme Court in the case of Anuj Chaturvedi v. Jyothi,82 held that the child has the
right to receive love and affection from both the parents. The same was observed by Justice
Kurian Joseph in the case of Tatineni Mayuri v. Edara Baldev,83 where he stated that the
child needs both the mother and father.

It is also submitted that in the case of Aman Lohia vs Kiran Lohia,84 it was stated that “best
interest and welfare of the child” that would ensure that every decision taken regarding the
child is for fulfilment of her basic rights and needs, identity, social well-being and physical,
emotional and intellectual development. In the other hand The Law Commission of India
Report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint
custody and shared parenting.

▪ It disagreed with the idea of singular child custody with one parent.
▪ It made exhaustive recommendations for amendments in the Hindu Minority and
Guardianship Act, 195685 and Guardians and Wards Act, 189086 for joint custody and
for guidelines for such custody, child support, and visitation arrangements.

80. K.G. v. State of Delhi, W.P. (Crl.) No. 374/2017.

81. Kanika Goel v. State of Delhi Miscellaneous Application No. 2487-2492 Of 2018 in Criminal Appeal No.635-
640 Of 2018.
82. Anuj Chaturvedi v. Jyothi, Special Leave to Appeal (C) Nos. 6303 of 2017. D/d 4.10.2019.
83. Tatineni Mayuri v. Edara Baldev, (Civil Appeal Nos. 2471-2473 of 2016).
84. Aman Lohia v. Kiran Lohia, 2021 SC 203.
85. The Hindu Minority and Guardianship Act, 1956.
86. Guardians and Wards Act, 1890.

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➢ The Hon’ble Family Court has gravely erred while deciding the custodial dispute
It is humbly and respectfully submitted that the Section 41 of the Indian Divorce Act,186987 and
Section 38 of the Special Marriage Act,195488 gives power to the Court to pass such interim orders
and made such provisions in the decree as it may seem to it to be just and proper with respect to
custody of minor child. The Family Court in the present case has gravely ignored the parental rights
of the appellant and his involvement in the child’s life.

Thus, the appellant contends the Hon’ble Supreme Court of New Bharat to reject the sole custody
to Mrs, Zara and award a joint custody to both the parties while adequately considering their parental
rights in involvement in the child’s life based on the welfare and best interest of the child.

ISSUE 5: HOW DOES THE COURT ASSESS THE EQUITABLE DISTRIBUTION OF

MARITAL ASSETS, AND WHAT CONSIDERATIONS SHOULD BE WEIGHED IN THE
CONTEXT OF THIS CASE?

5.1 It is humbly and respectfully submitted before the Hon’ble Supreme Court of New Bharat that
Courts consider many factors when deciding how to divide up property under equitable
distribution rules. These factors may include the contributions each spouse made to the other
person’s career and to acquiring marital property; the assets, income, and earning potential of each
spouse and the living standard enjoyed during the marriage. When equitable distribution rules
apply, this doesn’t necessarily mean marital property (and marital debt) is divided equally. It means
the goal is to create a fair division of assets based on the factors relevant to the situation. Marital
assets are those built up by parties during the time of marriage.

5.2 Unfortunately, there’s a lack of specific laws addressing matrimonial property and its fate post-
divorce, leaving courts to rely on discretionary powers, often favoring separate ownership
principles.

87. The Indian Divorce Act, 1869.

88. The Special Marriage Act, 1954.

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 5.3 It is humbly and respectfully submitted that, Courts take into account various factors when
determining marital assets distribution after divorce, Courts first take ascertain ownership or title
over the property in question. Several Judicial Precedents shed light on this matter:

➢ Joint Ownership with Contributions from Both Spouses:

In cases of joint ownership where both spouses contribute, the property is divided proportionally
based on their respective contributions. To determine the share of each spouse, the court takes
into consideration individual equity over the property.
➢ Joint Ownership with Sole Contribution from One Spouse:
When only one spouse financially contributed to a jointly owned property, the court usually
divides the property equally between them. However, if the contributing spouse proves full
payment from their known sources, they may acquire the entire property, regardless of joint
ownership.89
➢ One Spouse Holds Title, but the other contributed:
In situations where one spouse’s name is on the property deed but the other contributed
financially, the court determines if it’s a benami transaction. If proven otherwise, the property’s
legal owner may claim it entirely. However, if the non-titled spouse proves financial
contribution, they’re entitled to a share, with the burden of proof on them.90

5.4 It is humbly submitted before the Hon’ble Supreme Court of New Bharat that the Learned
Family Court did not equitably distribute marital assets and the division shall be reviewed due to
the following reasons:

➢ The Special Marriage Act 1954 does not have specific provisions regarding distribution of
marital assets
It is humbly submitted that The Special Marriage Act, 1954 does not have specific provisions
regarding distribution of marital assets. Couples opting for marriage under this act follow the
principles outlined within it. Asset division is determined by the court, based on principles of
fairness and equality.

89. Sri Arun Das v. Smt. Aparna Das, AIR ONLINE 2021 Tri 115.
90. Debika Chakraborty v. Pradip Chakraborty, AIR 2017 Calcutta 11.

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 ➢ The Learned Family Court did not adequately analyses the marital assets, liabilities and
contribution of the parties.
It is humbly submitted that the Hon’ble Court shall apply the principle of equitable distribution,
considering factors such as the duration of the marriage, financial contributions, and future
needs of each party. The court shall order a distribution of assets that it deems fair. There are
some common factors required to be considered in equitable distribution:
▪ Duration of marriage.
▪ Contribution to the marriage.
▪ Income and earning capacity.
▪ Standard of living.
▪ Debts and liabilities.
▪ Valuation of assets.
▪ Categorizing property.

5.5 In the instant matter, the Learned Family Court has not adequately analyzed the above-
mentioned factors and thus the appellant has been unfairly disadvantaged.

➢ The Hon’ble High Court has failed to apply the rules of natural justice:
It is humbly submitted that the ‘reasoned decision rule of natural justice’ has been violated in
the present matter. Reasoned Decision is such a decision which states that order, decision or
judgment of the court given by the presiding authorities with a valid and reasonable ground.
The reasoned decision has three grounds:
I. The aggrieved party has the chance to demonstrate before the appellate and revisional court that
what was the reason which makes the authority to reject it.
II. It is a satisfactory part of the party against whom the decision is made.
III. The responsibility to record reasons works as obstacles against arbitrary action by the judicial
power vested in the executive authority.

In the case of S.N. Mukherjee v. Union of India,91 any party affected by a decision should be
informed of the reasons on which the decision is based" and that "such a decision should be in
the form of a reasoned document available to the parties affected."

91. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

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 In the case of Ram Murti Saran v. State of U.P. and Ors.92 it make such orders as appears to
it necessary for the ends of justice."

In the instant matter, the above-mentioned grounds have been denied to the appellant and he
has been stripped off natural justice. Thus, it is humbly submitted before the Hon’ble Supreme
Court of New Bharat that the appellants contentions must be taken into considerations as he has
been unfairly disadvantaged.

92. Ram Murti Saran v. State of U.P. and Ors., AIR 1971 ALL. 54.

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 PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, AUTHORITIES CITED AND

ARGUMENTS ADVANCED, IT IS MOST HUMBLY AND RESPECTFULLY REQUESTED
THAT THE HON'BLE SUPREME COURT OF NEW BHARAT BE PLEASED TO:

1. SET ASIDE the decision upheld by the Hon’ble High Court of Nilachal Pradesh.
2. DECLARE that appellant is not responsible for misuse of personal content on social
media platform.
3. ADEQUATELY consider the unique circumstances of inter-religious marriage.
4. ADEQUATELY consider the parental rights and GRANT joint custody of the child.
5. REVIEW division of matrimonial assets.

AND/OR
PASS ANY OTHER ORDER IT MAY DEEM FIT, IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.
ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.

COUNSEL ON BEHALF OF APPELLANT

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MEMORIAL ON BEHALF OF APPELLANT