BEFORE THE HON’BLE SUPREME COURT
SUPREME COURT OF INDIA
APPELLATE JURISDICTION
CIVIL APPEAL NO. _____OF 2023
IN THE MATTER OF
ABHINAV KULKARNI AND ANR
(PETITIONER)
VERSUS
PRIYANKA DESHMUKH AND ORS.
(RESPONDENT)
_________________________________________________________________________
__
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION
JUSTICE OF THE SUPREME COURT OF INDIA
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………………...3
STATEMENT OF JURISDICTION………………………………………………………..6
STATEMENT OF FACTS…………………………………………………………………..7
ISSUES RAISED……………………………………………………………………………..8
SUMMARY OF ARGUMENTS…………………………………………………………….9
ISSUE 1: WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/
IS MAINTAINABLE?
ISSUE 2: WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS
AVERED IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE
IS THE NATURAL GUARDIAN OF THE CHILD. IS THE APPLICATION FOR THE
APPOINTMENT OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
ISSUE 3: WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE DAUGHTER
PRIYANKA AND MR. DESHMUKH IS VALID AND SUBSTITUTING?
ISSUE 4: WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS PRAYED
FOR?
INDEX OF AUTHORITIES
A. LIST OF ABBREVIATIONS
AIR ALL INDIA REPORTER
SC SUPREME COURT
HC HIGH COURT
SCJ SUPREME COURT JOURNAL
CrPc CODE OF CRIMINAL PROCEDURE
SCR SUPREME COURT REPORTER
Ors. OTHERS
Anr. ANOTHER
IC INDIAN CASES
SEC SECTION
V. VERSUS
BomCr Bombay Criminal Cases
BomLr Bombay Law Reporter
Cri Lj Criminal Law Journal
B. CASES CITED
STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of Indiana by the means of a Civil Appeal,
under Article 1361 of the Constitution of Indiana.
1
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
ISSUE RAISED
I.
WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/ IS
MAINTAINABLE?
II.
WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS
AVERED IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE
IS THE NATURAL GUARDIAN OF THE CHILD. IS THE APPLICATION FOR THE
APPOINTMENT OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
III.
WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE DAUGHTER
PRIYANKA AND MR. DESHMUKH IS VALID AND SUBSTITUTING?
IV
WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS PRAYED FOR?
SUMMARY OF ARGUMENTS BY THE APPELLANT
ISSUE 1
WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/ IS
MAINTAINABLE?
The petition is maintainable because Section 7 of the Guardian & Wards Act, 1890 does not restrict the right
to file a petition to any category of persons. The Petitioner has alleged that the natural guardian is not taking
proper care of the child, which is a serious allegation that the Family Court has a duty to investigate.
ISSUE 2
WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS AVERED
IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE IS THE
NATURAL GUARDIAN OF THE CHILD IS THE APPLICATION FOR THE APPOINTMENT
OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
The Family Court has jurisdiction to entertain the petition and the application for appointment of guardian
is maintainable because the Family Court has the power to appoint another person as guardian if it is in
the best interests of the child.
ISSUE 3
WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE DAUGHTER PRIYANKA
AND MR. DESHMUKH IS VALID AND SUBSTITUTING?
The validity of the deed of adoption is a question of fact that can only be decided by the Family Court after
examining all the evidence. However, the fact that the deed was executed after the Petitioner filed a petition
in the Family Court seeking appointment as guardian raises suspicion about the motive behind the adoption
ISSUE 4
WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS PRAYED FOR?
Whether the Petitioner is entitled to any of the reliefs prayed for is a question that can only be decided by the Family
Court after considering all the evidence and the circumstances of the case. However, the welfare of the child is the
paramount consideration in all matters relating to guardianship and custody.
ARGUMENTS ADVANCED BY THE PETITIONER
ISSUE 1
WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/ IS
MAINTAINABLE?
1.1 It is humbly submitted before the Hon’ble Supreme Court of Indiana that the Petition filed by the
Petitioner is maintainable under article 136 of the Constitution of Indiana. Article 136 of the Constitution of
Indiana stated that:
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
1.2 Additionally, Section 7 of the Guardian & Wards Act, 1890 states that any person claiming to be entitled
to the guardianship of a minor may apply to the District Court for an order appointing him as guardian of
the minor. The provision does not restrict the right to file a petition under Section 7 to any category of
persons. Therefore, the Petitioner, being the maternal grandfather of the minor, is entitled to file a petition
under Section 7 seeking appointment as the guardian of the minor.
1.3 Supreme Court has held in the case of Githa Hariharan v. Reserve Bank of India2 (2009) that the welfare
of the child is the paramount consideration in determining the child's custody. The court also held that the
mother is the natural guardian of the child, but this does not mean that the father cannot be appointed as the
guardian if it is in the best interests of the child.
1.4 In the present case, the Petitioner has alleged that the natural guardian, i.e., the mother of the child, is
not taking proper care of the child and that the child is better off with the Petitioner. The Petitioner has also
alleged that the deed of adoption executed between the mother and her father is invalid. Further said that
these are serious allegations and the Family Court has a duty to investigate them. Therefore, the Family
Court has jurisdiction to entertain the petition filed by the Petitioner.
2
1999 2 SCC 228
ISSUE 2
WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS AVERED
IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE IS THE
NATURAL GUARDIAN OF THE CHILD. IS THE APPLICATION FOR THE APPOINTMENT
OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
2.1 It is submitted that, the Family Court has jurisdiction to entertain petitions under Section 7 of the
Guardian & Wards Act, 1890. The mother of the child is the natural guardian of the child, but the Family
Court has the power to appoint another person as guardian if it is in the best interests of the child.
2.2 That the Supreme Court has held in the case of Priya v. State of Goa (2011) 3that the grandparents can
be appointed as the guardians of the child if it is in the best interests of the child. The court also held that
the court will consider all of the factors involved, including the relationship between the child and the
different parties involved, the child's needs, and the child's wishes (if the child is old enough to express
them).
2.3 In the present case, the Petitioner has alleged that the natural guardian, i.e., the mother of the child, is
not taking proper care of the child and that the child is better off with the Petitioner. The Petitioner has also
alleged that the deed of adoption executed between the mother and her father is invalid. It is humbly
submitted that these are serious allegations and the Family Court has a duty to investigate them. Therefore,
the Family Court has jurisdiction to entertain the petition filed by the Petitioner.
ISSUE 3
WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE DAUGHTER PRIYANKA
AND MR. DESHMUKH IS VALID AND SUBSTITUTING?
3.1 The validity of the deed of adoption executed between the daughter, Priyanka and Mr. Deshmukh is a question of
fact that can only be decided by the Family Court after examining all the evidence.
3.2 However, it is important to note that the deed of adoption was executed after the Petitioner had filed a
petition in the Family Court seeking appointment as the guardian of the child. This raises suspicion about
the motive behind the adoption.
3.3 Furthermore, the Petitioner has alleged that the adoption was not done in accordance with the law.
These applications need to be investigated by the family.
3
2022 LiveLaw (SC) 186
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ISSUE 4
WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS PRAYED FOR?
4.1 It is submitted that the important to note that the welfare of the child is the paramount consideration in
all matters relating to guardianship and custody. Therefore, the Family Court will have to decide what is
in the best interests of the child before passing any order.
4.2 The Family Court should consider the following factors while making a decision about the
guardianship and custody of the child:
(1) The relationship between the child and the different parties involved.
(2) The child's needs.
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PRAYER
In light of the aforesaid facts and circumstances, the Petitioner most humbly prays to the Hon’ble Court to:
a) Allow the present Special Leave Petition;
b) Declare petition filed u/s 7 of Guardian and Wards Act, 1890/ is not maintainable; and
c) Reject the adoption deed ; and
d) Any other relief that this Hon’ble Court may be pleased to grant considering the facts and
circumstances of the present case.
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SUMMARY OF ARGUMENTS BY THE RESPONDENT
ISSUE 1
WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/ IS
MAINTAINABLE?
The petition is not maintainable because Section 7 of the Guardian & Wards Act, 1890 does restrict the right
to file a petition to any category of persons. The Petitioner is not the first natural of the child, hence not
eligible to file the present Petition.
ISSUE 2
WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS AVERED
IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE IS THE
NATURAL GUARDIAN OF THE CHILD IS THE APPLICATION FOR THE APPOINTMENT
OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
The Family Court has no jurisdiction to entertain the petition and the application for appointment of
guardian is maintainable because the mother is the natural guardian and possess the rightin the best
interests of the child.
ISSUE 3
WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE DAUGHTER PRIYANKA
AND MR. DESHMUKH IS VALID AND SUBSTITUTING?
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The validity of the deed of adoption is a question of fact that can only be decided by the Family Court after
examining all the evidence. However, the fact that the deed was executed after the Petitioner filed a petition
in the Family Court seeking appointment as guardian raises suspicion about the motive behind the adoption
ISSUE 4
WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS PRAYED FOR?
Whether the Petitioner is entitled to any of the reliefs prayed for is a question that can only be decided by the Family
Court after considering all the evidence and the circumstances of the case. However, the welfare of the child is the
paramount consideration in all matters relating to guardianship and custody.
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ARGUMENTS ADVANCED BY THE RESPONDENT
ISSUE 1
WHETHER THE PETITION FILED U/S 7 OF GUARDIAN AND WARDS ACT, 1890/ IS
MAINTAINABLE?
1.1 The argument here is that the petition filed under Section 7 of the Guardians and Wards Act, 1890 is
maintainable as it seeks the appointment of a guardian for the child. Section 7(1) of the Act provides for the
appointment of a guardian by the Court. In the present case, the parents of the child are unwilling or unable to
take care of the child. Therefore, it is necessary for the Court to intervene and appoint a suitable guardian for
the child's welfare. The Family Court erred in rejecting the prayer for the appointment of a guardian and
custodian for the child.
1.2 That the petition filed under Section 7 of the Guardians and Wards Act, 1890 4 is maintainable as it seeks
the appointment of a guardian for the child. Section 7(1) of the Guardians and Wards Act, 1890 provides for
the appointment of a guardian by the Court.
1.3 In the present case, as the parents of the child are unwilling or unable to take care of the child, it is necessary
for the Court to intervene and appoint a suitable guardian for the child's welfare. In, Bhagwan Dutt v. Kamla
Devi5, In this case, the Supreme Court held that the welfare of the child is of paramount consideration in
matters of guardianship and custody. Therefore, the Court can appoint a guardian if it is in the best interest of
the child, even if the natural parents are alive.
1.4 It is humbly submitted before this Hon’ble Court that the Family Court erred in rejecting the prayer for
the appointment of a guardian and custodian for the child.
4
5
(1975) 2 SCC 386
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ISSUE 2
WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION AS AVERED
IN VIEW OF THE PRELIMINARY OBJECTION RAISED BY MOTHER THAT SHE IS THE
NATURAL GUARDIAN OF THE CHILD. IS THE APPLICATION FOR THE APPOINTMENT
OF THE GUARDIAN BY THE PETITIONER MAINTAINABLE?
2.1 The argument here is that this Court has jurisdiction to entertain the petition as the issue of guardianship
and custody of the child is of national importance and involves the interpretation of statutory provisions. The
preliminary objection raised by the mother that she is the sole natural guardian of the child is unfounded.
Section 6(a) of the Guardians and Wards Act, 18906 recognizes that both parents are natural guardians of the
child. The Supreme Court has consistently held that the welfare and best interests of the child are of paramount
importance in matters of custody and guardianship. Therefore, this Court has jurisdiction to decide on the
issue and should consider the best interests of the child in making its decision.
2.2 In the case of Githa Hariharan v. Reserve Bank of India & Anr,7 The Supreme Court in this case
emphasized that both parents are natural guardians of the child and their rights should not be treated unequally.
The Court also reiterated that the welfare and best interests of the child should be the primary consideration.
2.3 This Court has jurisdiction to entertain the petition as the issue of guardianship and custody of the child is
of national importance and involves the interpretation of statutory provisions. The preliminary objection raised
by the mother that she is the sole natural guardian of the child is unfounded. Section 6(a) of the Guardians and
Wards Act, 1890 recognizes that both parents are natural guardians of the child.
2.4 Additionally, this Hon’ble Court, in various judgments, has held that the welfare and best interests of the
child are of paramount importance in matters of custody and guardianship. The application for the appointment
of a guardian by the petitioner is maintainable as the rights of the natural guardians can be superseded by the
Court in the interest of the child.
2.5 It is submitted that the Family Court erred in holding that in the presence of the natural guardian, the Court
cannot appoint any guardian. Guardians and Wards Act, 1890 empowers the Court to appoint a guardian if it
is in the best interest of the child.
6
7
(1999) 2 SCC 228
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ISSUE 3
WHETHER THE DEED OF ADOPTION EXECUTED BETWEEN THE
DAUGHTER PRIYANKA AND MR. DESHMUKH IS VALID AND
SUBSTITUTING?
3.1 It is submitted before this Hon’ble Court that the deed of adoption executed between
Priyanka and Mr. Deshmukh is invalid and does not substitute the rights of the maternal
grandparents over the child. The Family Court erred in accepting the deed of adoption as valid
without considering the interests and welfare of the child. The deed of adoption cannot be a
substitute for the rights and responsibilities of the natural guardians or the welfare of the child.
The petitioner, Mr. Kulkarni, has a legitimate claim over the guardianship and custody of the
child and the deed of adoption should not negate that claim.
3.2 In the case of Nil Ratan Kundu & Ors. v. Abhijit Kundu & Ors,8 The Supreme Court in
this case held that the Court has the power to appoint a guardian in cases where the natural
guardians are incapable or unfit to take care of the child's welfare.
3.3 Based on the above observation of the Hon’ble Court it is submitted that the deed of
adoption executed between Priyanka and Mr. Deshmukh is invalid and does not substitute the
rights of the maternal grandparents over the child. Family Court erred in accepting the deed
of adoption as valid without considering the interests and welfare of the child.
ISSUE 4
WHETHER THE PETITIONER IS ENTITLED TO ANY OF THE RELIEFS
PRAYED FOR?
4.1 The argument here is that the petitioner, Mr. Kulkarni, is entitled to the reliefs prayed for
as he has a legitimate claim over the guardianship and custody of the child. The welfare and
best interests of the child should be the paramount consideration in determining the issue of
8
(2008) 9 SCC 413
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custody and guardianship. The petitioner has demonstrated a strong relationship with the child
and the ability to provide a nurturing and stable environment for the child's growth and
development. Therefore, the Court should grant the reliefs prayed for by the petitioner.
4.2 It is submitted that the petitioner is entitled to the reliefs prayed for as they have a legitimate claim
over the Guardianship and Custody of the Child. The welfare and best interests of the child should be
the paramount consideration in determining the issue of custody and guardianship. The petitioner has
demonstrated a strong relationship with the child and the ability to provide a nurturing and stable
environment for the child's growth and development.
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PRAYER
In light of the aforesaid facts and circumstances, the Respondent most humbly prays to the
Hon’ble Court to:
a) Dismiss the present Special Leave Petition;
b) Declare petition filed u/s 7 of Guardian and Wards Act, 1890/ is maintainable; and
c) Allow the adoption deed ; and
d) Any other relief that this Hon’ble Court may be pleased to grant considering the facts
and circumstances of the present case.
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