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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
SAMAR KUMAR BASU NATIONAL MOOT COURT
COMPETITION,
BEFORE THE HON’BLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETETION NO.__ OF 2023
MR. SANJAY BEHTA …………… PETITIONER
v. MRS. DIVYA SETH ………….. RESPONDENT UNDER RULE 21 OF THE SUPREME COURT RULES, 2013 PETITIONS INVOKED UNDER ART. 136 OF THE CONSTITUTION OF INDIA UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
TC- 199
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
INDEX
TABLE OF ABBREVIATIONS……………………………………………………………
INDEX OF AUTHORITIES………………………………………………………………..
STATEMENT OF JURISDICTION……………………………………………………….
SYNOPSIS OF FACTS……………………………………………………………………
ISSUES RAISED………………………………………………………………………….1 4
SUMMARY OF ARGUMENTS…………………………………………………………
ARGUMENTS ADVANCED……………………………………………………………..
1. WHETHER THE PETITION(S) ARE MAINTAINABLE?........................................ 14
[1.1] THE APPELLANT HAS LOCUS STANDI TO APPROACH THIS
HON’BLE COURT .............................................................. Error! Bookmark not defined. [1.2] ARGUENDO, IF IT IS ASSUMED THE PETITION IS NOT MAINTAINABLE, THIS HON’BLE COURT CAN STILL HEAR THE MATTER. Error! Bookmark not defined. [1.3] SCOPE OF POWERS OF THIS HON’BLE COURT UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA .............................. Error! Bookmark not defined. [1.4] THE INSTANT PETITION SATISFIES ALL GROUNDS REQUIRED FOR AN APPEAL UNDER ARTICLE 136. ............................... Error! Bookmark not defined. [1.5] EXHAUSTION OF REMEDIES. ...................... Error! Bookmark not defined. [1.6] RELIEFS THAT COULD BE GRANTED BY THIS HON’BLE COURT ...
2. WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON HIS OWN WELFARE ESPECIALLY WHEN SUCH DECISION RELATES TO COMPLEX ISSUES OF GENDER IDENTITY? ................. Error! Bookmark not defined.
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
TABLE OF ABBREVIATIONS
ABBREVATION FULL FORM
& And UOI Union of India SLP SPECIAL LEAVE PETETION Sec. Sections v. Verses right Fundamental Rights Rules Hindu minority And guardianship act 1956 Anr. Another SCO Sex change operation No. Number HC High Court i.e. That Is SC Supreme Court Ed. Edition SCC Supreme Court Cases SCR Supreme Court Report AIR All India Reporter Act Guardianship and wards Act 1890 pg. Page Ors. Others FR Fundamental Rights
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS Art. Article UN United Nations Acc. According
INDEX OF AUTHORITIES
STATUTES
The Constitution of Indiana, 1950 The Hindu Marriage Act, 1955 Hindu Minority and guardianship Act, 1956 Guardianship and wards act, 1890 CASES A. Jyachandra v. Aneel Kaur, ………….. A.V. Papayya Sastry v. Government of Andhra Pradesh………………… Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass………… 16 Chinder Pal Singh vs. The Chief Secretary S.B………. City Corner v. P.A. to the Collector, ……………….. 16 Clerks of Calcutta Tramways v. Calcutta Tramways Co…………. 16 Divisional Manager A.P.S.R.T.C v. P. Lakshmoji Rao, ……………… 17 Durga Shankar v. Raghu Raj, ………………. 14 Ganga Kumar v. State of Bihar,……….. Jamshed Hormusji Wadia v. Board of Trustees………. Jatina Samir Shah v. Samir Shah……… K.M. Nanavati v. State of Bombay, ………….. 17 Kunhayammed and Others v. State of Kerala and Another……. 16 Kunhayammed v. State of Kerala, …………… 16
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
- Paras Diwan, Family Law, (Thirteenth edition, Allahabad Law Agency)
- Dr Poonam Pradhan Saxena, Family law ( Tenth Edition, Lexis Nexis).
- Dinshah Fardunji Mulla, Family Law ( Twenty Fourth Edition, Eastern Book Company). ONLINE SOURCES
- SCC Online
- Manupatra
- JSTOR
- LiveLaw DICTIONARY Black’s law dictionary (4th^ edition)
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of India under Article 136 of the Constitution of India. The leave has been granted by this Hon’ble court in both matters and both the matters are to be heard by this Hon’ble Supreme Court together. The article 136 of Constitution of India reads as hereunder: “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, Sentence Or Order Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating To The Armed Forces.”
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS reassignment surgery. Anubhav decided that he also wants to undergo sex change operation. He told his wish to her mother who quickly agreed to it. 01.09.2019 the couple had an ugly fight. Mr. Sanjay said that he also had a right to decide as to what is right or wrong for their son. Mrs. Seth however said as she has given birth to Anubhav so she has the exclusive right to take decisions about her son. The quarrel between the couple grew worse and in the heat of quarrel. 02.09.2019 Mrs Seth along with Anubhav left her matrimonial home and went to house of her father. Mr. Sanjay apologized to her for what had happened and requested her to return back. Mrs. Seth however told him that she will return with only if he will support her in her decision for Anubhav’s sex change operation. To this, Mr. Sanjay said that whatever she was doing was against the welfare of Anubhav and he too had a right to decide as to what is in the best interest of his child. 20.01.2020 Mrs. Divya took Anubhav to Delhi against wishes and consent of Mr. Sanjay for gender reassignment surgery. The surgery was successful and Anubhav was now a girl. PROCEEDINGS 06.02.2020 Deeply hurt by actions of his wife, Mr. Behta filed a petition for divorce on the ground of cruelty before the family court, Lucknow. He also filed a petition for custody and guardianship of Anubhav. All of the petitions were filed in accordance with the provisions of Hindu Law. In custody suit, statement of Anubhav was recorded before the court in which he stated that his father was a very nice person. He never acted cruelly with him.He further stated that he wants to live with both of his parents. 02.03.2021 The family court vide its common judgment and decree granted divorce to Mr. Sanjay on the ground of cruelty and granted custody of Anubhav to Mr. Sanjay for the reason that it was in the interest of greater welfare of child. The family court also declared Mr. Sanjay as Guardian of Anubhav. Aggrieved by the judgment and decree of family court, Mrs. Divya filed an appeal before Hon’ble Allahabad HC, Lucknow bench. 06.04.2022 The High Court vide its judgment and order set aside the judgement and decree of the family court. The HC held that supporting her son in his decision doesn’t amount to cruelty and also held that right to determine one’s own gender is an essential part of welfare of a child and actions of a mother supporting his decision cannot be termed as cruelty. The HC also held that Mr. Sanjay acted against the welfare of his son by not supporting him in his decision to
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS undergo gender reassignment surgery and thus he is not entitled to custody and guardianship of Anubhav and that it was in interest of welfare of Anubhav that his custody remains with Mrs. Seth. Mrs. Seth was also declared as legal guardian of Anubhav. Aggrieved by the judgment and order dated 06.04.2022 passed by the HC, Mr. Sanjay filed an appeal before the Hon’ble Supreme Court on 18.04.2022.
ISSUES RAISED
ISSUE 1 :
HETHER THE PRESENT PETITIONS ARE MAINTAINABLE.
ISSUE 2 :
WHETHER A CHILD OF TENDER AGE OF 11 YEARS CAN TAKE DECISION UPON
HIS OWN WELFARE ESPECIALLY WHEN SUCH DECISION RELATES TO
COMPLEX ISSUES OF GENDER IDENTITY?
ISSUE 3:
WHETHER ACTIONS OF MRS. DIVYA SETH SUPPORTING AND TAKING
ANUBHAV FOR HIS GENDER REASSIGNMENT SURGERY WITHOUT CONSENT OF
MR. SANJAY AMOUNT TO CRUELTY AND ACTING AGAINST WELFARE OF
CHILD?
ISSUE 4 :
WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS
DECISION TO UNDERGO GENDER REASSIGNMENT SURGERY CAN BE TERMED
AS ACTING AGAINST THE WELFARE OF CHILD?
W
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS of respondent of taking a minor son for his surgery without taking into actthe negative impact of the surgery on the child is acting against the welfare of child. ISSUE 4: WHETHER ACTIONS OF MR. SANJAY NOT SUPPORTING ANUBHAV IN HIS DECISION TO UNDERGO GENDER REASSIGNMENT SURGERY CAN BE TERMED AS ACTING AGAINST THE WELFARE OF CHILD? It is humbly submitted before the hon’ble Court that Mr. sanjay not supported his son in his decision for Sex Reassignment surgery does not amount to acted against welfare of child. He did not support his son at that time because of the risk involve in it, he took his son to india best psychologist for his treatment, and gave assurance that if he will not cure after the treatment. He will support him in his decision of changing his Sex from boy to girl.
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
1. WHETHER THE PETITION(S) ARE MAINTAINABLE?
It is humbly submitted before the Hon’ble Court that the present petition filed before the Court is maintainable as the Court has the power to hear the present issue. The rights of the child has been violated and for the welfare of the child this suit is very important. Also under article 136 of the constitution of india gives this right to approach the Hon’ble supreme court. Herein the arguments have been dealt in a sevenfold manner i. e. [1.1 ] The Appellant has Locus Standi to approach this Hon’ble Court , [1.2] Arguendo, if it is assumed the Petition is not maintainable, this Hon’ble Court can still hear the matter .,[ 1.3 ] Scope of powers of this Hon’ble Court under Article 136 of the Constitution of India, [1.4] The instant petition satisfies all grounds required for an appeal under Article 136 , [1.5] Exhaustion of Remedies, [1.6] Grounds of rejection. [1.7] Reliefs that could be granted by this Hon’ble Court. [1.1] The Appellant has Locus Standi to approach this Hon’ble Court 1.1.1 Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal against any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. It is humbly submitted that powers under Article 136 can be exercised against any kind of judgement or order which is causing injustice to any party, and to serve the need, the power under Article 136 is unfettered.^1 1.1.2 In the case of Jamshed Hormusji Wadia v. Board of Trustees^2 , the Supreme Court commented on the developing trend of settling private disputes under Article 136 and it said that it would become necessary for the Supreme Court to intervene in private controversies if (^1) Durga Shankar v. Raghu Raj, AIR 1954 SC 520 (^2) Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815
ARGUMENTS ADVANCED
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS hear the instant matter because the High Court has been gravely wrong in understanding the facts and nature of the instant matter. [1.4] The instant petition satisfies all grounds required for an appeal under Article 136 1.4.1 It is humbly submitted that if special leave is granted and the same is restricted to a particular question, the Court is not constrained in any manner to restrict itself to hearing only those matters^10 , insofar as an opportunity of being heard is giving to the opposite party also^11. Hence, it is submitted that this Hon’ble Court can dwell into all matters, including question of fact and decide this matter on merits grant justice. 1.4.2 The Supreme Court has exercised its Jurisdiction under Article 136 under the following circumstances- i. When the Tribunal ostensibly fails to exercise its patent jurisdiction.^12 ii. When there is an apparent error on the face of the decision^13. iii. The tribunal has erroneously applied well-accepted principles of jurisprudence^14 iv. The tribunal acts against the principles of Natural Justice^15 , or has approached the question in a manner likely to cause injustice^16 1.4.3 In the instant case, the order of the High Court not only did in justice to the Appellant, it has even failed in understanding the true nature of the case and was erroneous in understanding many facts. Hence, there is an over-whelming error on the part of the High Court, leading to severe injustice and wrong to the Appellant; thus, the counsel for the Appellant would like to invoke the jurisdiction of this Hon’ble Court and remedy the above injustice. [1.5] Exhaustion of Remedies: (^10) Suresh Chandra v. State of Uttar Pradesh, AIR 2005 SC 3120 (^11) Pubnjab State Electricity Board v. Darbbara Singh, AIR 2006 SC 387 (^12) Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186 (^13) Siemens Eng & Mfg Co. v. Union of India, AIR 1976 SC 1785 (^14) Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78 (^15) City Corner v. P.A. to the Collector, AIR 1976 SC 143 (^16) Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS 1.5.1 The Supreme Court has imposed on itself a restriction that before invoking the jurisdiction of the Court under Article 136, the aggrieved party must exhaust any remedy which maybe available under the law before the lower appellate authority or the High Court.^17 1.5.2 In the instant case, the Appellants have indeed exhausted all local remedies by approaching a Divisional Bench of the High Court and a higher bench of the same Court. The only remedy available for the Appellants is this Hon’ble Court and hence, it is humbly requested of this Hon’ble Court to grant justice to the Appellants. [1.6] Grounds of rejection: 1.6.1 The limitation on exercise of the discretionary powers under Article 136 of the Constitution has been laid down by the Supreme Court itself^18. In Kunhayammed and Others v. State of Kerala and Another^19 , it was held that a petition seeking grant of special leave to appeal may be rejected for several reasons, some of which are as follows: i. If the Petition is barred by time; ii. If the Petition is presented in a defective manner; iii. The petitioner has no locus standi to file the petition; iv. The conduct of the petitioner disentitling him to any indulgence by the court; v. The question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court; 1.6.2 In the instant case, it is obvious on a prima-facie level that the Appellants have no grounds on which the instant petition for special leave could be rejected. The questions raised by the Appellants involve substantial questions of law, as would be shown in the subsequent submissions, and the same requires to be adjudicated by this Hon’ble Court. [1.7] Reliefs that could be granted by this Hon’ble Court. 1.7.1 Under Article 136, the Supreme Court can give whatever relief that might be necessary and proper in the facts and circumstances^20. The Supreme Court may even invoke its power (^17) Nirma Ltd v. Lurgi Lenteges Energietechnik Gmbh, AIR 2002 SC 3695 (^18) Kunhayammed v. State of Kerala, AIR 2000 SC 2587 (^19) Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359 (^20) Divisional Manager A.P.S.R.T.C v. P. Lakshmoji Rao, AIR 2004 SC 1503
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS 2.1.4 Through the operation of the consent element, parents were originally given control over most medical care decision making for their children. The law requires that concent to any intentional touching be "informed consent" for medical care this means the consent must be based upon "adequate information about the therapy, the available alternatives and the collateral risks."^23 A child is generally considered incapable of giving this informed consent, and often only the parents approval can render an intentional touching of a child nontortious. 2.1.5 Childs ability to understand the significance of the consent should be determined by inquiring into the capacity of child to make rational thinking. the requirement of parental consent responds to our perception of the child's inferior capacity to deal with weighty decisions. 24 2.1.6 Competency is essential in medical decision making so are two other requirements: voluntariness and ability of full information these three elements are equally necessary for a patient to have the capacity to accept or refuse proposed medical treatment.^25 Moot problem is silent upon providing complete information regarding sex change surgery. Hence decision were not voluntary and leads to misleading surgery also lead to uninformed choice. 2.1.7 Children may find it difficult to understand complex issues like gender identity due to their cognitive and emotional development. Concepts related to gender identity, such as transgender or non-binary identities, can be abstract and require a certain level of cognitive maturity to grasp fully. 2.1.8 understanding of gender identity as a deeply personal and internal sense of being may take more time to develop. And at the tender age of 11 we clearly can’t expect Mr Anubhav to be aware of such complex issue. [ 2 .2] Mr. Anubhav at such a tender age is not aware of what is for his welfare. (^23) Waltz & Scheuneman, Informed consent to therapy, 64 Nw. U. L. REV. 628, 629 (1969). (^24) Bennett, Robert. “Allocation of Child Medical Care Decision-Making Authority: A Suggested Interest Analysis.” Virginia Law Review , vol. 62, no. 2, 1976, pp. 285–330. JSTOR , https://doi.org/10.2307/1072299. Accessed 15 July 2023. (^25) Mitchell, Ian, et al. “Teenage Decision-Making Capacity.” The Hastings Center Report , vol. 38, no. 4, 2008, pp. 10–11. JSTOR , http://www.jstor.org/stable/25165341. Accessed 16 July 2023.
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS 2 .2.1. Definition of welfare “1. Resources and conditions needed for healthy and comfortable living. 2. Government support for members of society who are disadvantaged.”^26 For the welfare most needed thing is health and comfort. By the Decision of mother and minor agreeing to it both the comfort and health would be at a stake. 2 .2.2 it is true that children at the age of 11 are still developing and may not possess the same level of knowledge and life experience as adults. many laws exist that shows that the minor is not capable of forming rational judgement. 1.2.3 Gender reassignment surgery is a complex issue and decides the future of Mr Anubhav and welfare of child contains informed consent , as evident from the fact here Mr Anubhav didn’t consulted to any doctor for the same. Hence we can’t say that he was aware about his welfare. 1.2.4 A detailed understanding of decision making capacity is necessary to inform developmentally appropriate participation. The age at which a person is considered a minor can vary, but it is typically under 18 years old. 1.2.5 It is submitted before the Honorable Supreme Court that, a ‘child’ means every human being below the age of 18 years. This is a universally accepted definition of a child^27 1.2.6 A child of 11 years is not well mature to take such decision as , He is not aware about 3rd gender or what these gender identity things are and how are they different from one another" as mentioned in para 3 of moot proposition. 1.2.7 He made up his mind , and identified himself as a female trapped in a man's body only when his mother told him about it and watching documentary made him believe and thing of his self in the way Documentary depicted. 1.2.8 He used to play with dolls in place of cars and felt more comfortable in girls’ company does not mean , ‘he is a women trapped in man body’, may be he is just suffering from gender dysphoria.^28 (^26) Black’s law dictionary , welfare definition and legal meaning (^27) United Nation Convention on the Rights of the Child(UNCRC) (^28) As per NHS Report on gender dysporia.
