22/03/2019
Moot Problem for Moot Court (Civil) to be held on 26th March 2019 for the Students of BALLB Vth Year and LLB IIIrd Year students
Shamrao versus Wamanrao
The marriage between Sheela and Wamanrao took place in the year 2004. From the lawful wedlock they gave birth to Sheena aged about 11 years studying in 6th standard and another boy Shailesh aged about 8 years studying in 3rd standard. Sheela died on 27/10/2017, as she was suffering from chronic diseases. At the time of her death, Sheela and Shailesh were with parents and after death of Sheela they were with their maternal grandfather.
As per the case of Respondent, as he was in the mental shock on account of the death of his wife, on the request of maternal uncle of the minor children, he allowed the children to be kept in the house of maternal grandfather, and as a result, since the death of Sheela, the children are residing in the house of the appellant. It is the grievance of the respondent that on
several occasions he went to bring the children hack to his house, so that they can continue their studies in their school; however they were not sent by the appellant. Therefore, the respondent was constrained to file the application before the trial court for getting custody of the minor children. It was stated by him that he was financially sound and able to maintain and look after the children. The respondent is having ambition to make his children as Doctor and Engineer and as educational facilities are not available at the village, where the children residing with the appellant, respondent claimed the custody of minor children on the ground that their welfare will be look after better by him, he being their natural Father.
This application come to be resisted by the appellant contending inter alia that respondent was addicted to alcohol, he was an uncultured person and hence, there was least possibility of his looking after the minor children properly. It was contended that merely because respondent is the natural father of the minor children, custody of the children should not be handed over to him, as the court has to consider the welfare of the minor children, which has to be of paramount importance. In support of his case, respondent adduced his own evidence. he also examined two witnesses, where the appellant herein examined himself and also adduced the evidence of two witnessed, by name, to prove the second marriage of respondent. Both the parties relied upon, various other documentary evidence to prove that they are financially in a better off position to look after the welfare of the minor children.
The trial court, in order to satisfy itself about the wishes of the minors, had interaction with both the minors in his chamber. In his interaction with the minor children, both of them have flatly refused to stay with respondent father stating he was not treating them properly.
Learned trial court, however, after appreciating the evidence on record, held that though the wishes of the minor children are important, they cannot be the deciding factor. It was held that respondent being the natural father of the minor children, the welfare of the children lies in residing with the respondent. As regards the wishes expressed by the minor children, it was further observed by the trial court as both the minors were in the custody of the present appellant since the death of their mother, there was probability of appellant tutoring them. Learned trial court granted custody of both the minor children to respondent by allowing his application,
The appellant filed the appeal against the order of the trial court in the Moot Court on the following points of considerations:
1. Whether the parties are entitled to claim the custody of children as a matter of right?
2. Whether the father can claim the custody of children at any stage of child?
3. Whether the rights of the children has to be protected or not?
4. To any other relief.
Argue the matter before the Moot Court,
