2nd Dr.

Gurjeet Singh Memorial National Moot Court Competition

MOOT PROBLEM

BEFORE THE HON'BLE HIGH COURT AT INDRAPRASTH

[Criminal Revisional Jurisdiction]

C.R.R No. 1095/2017

IN THE MATTER OF

AMINA BEGUM

Vs

MD. SULTAN & ORS.

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Md. Sultan was born on 5th January, 1980 in Teqqa, the capital of Barloch, the largest
province of the country named Pakmulk. The State of Pakmulk, which was within erstwhile
British dominion and presently a democratic country, had earned its independence in the year
of 1957 after passing through a gory political turmoil with its neighbouring country Lindia.
Barloch, which was once a princely state, was accessed to Pakmulk only in the year of 1958
under strange circumstances through an instrument of accession signed by Sk. Rabiul
Rehman, the then ruler of Barloch. However, the act of accession of Barloch to Pakmulk has
since been a controversial issue and a liberation movement among the people of Barloch was
wrought by a non-violent group namely Inquilab led by Sk. Habibur Rehman who was the
brother of Sk. Rabiul Rehman.
Md. Sultan, born in the year 1980, was the youngest son of Sk. Habibur Rehman, the
then chief of Inquilab. Md. Sultan, who was an Oxford graduate in Political Science, gained
immediate popularity among the people of Barloch with his oratory skill and sincere
compassion for his followers and became the second in command of Inquilab in the year of
2005.
However, being intimidated with the rapid growth of influence of Inquilab on the
people of Barloch, the Government of Pakmulk initiated counter-insurgency mechanism and
in the year of 2007 the military of Pakmulk led a massive armed attack on Inquilab members
resulting in the death of Sk. Habibur Rehman. Md. Sultan and his mother Nazma Begum,
however, managed to escape the military attack and received political asylum in the
neighbouring country Lindia in the month of December, 2008.

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Lindia, which is a socialist, republic and democratic country, has, since its
independence, suffered innumerable acts of hostility and terrorism perpetrated by Pakmulk
and as a counter mechanism, Lindia's foreign policy covertly supports the liberation
movement of Barloch people. In the year 2009, the Lindian government provided Md. Sultan
and his mother Nazma Begum with LTV (Long Term VISA) and a temporary residential
house at Mirjapur of district Bhadrak within Indraprasth (capital of Lindia). Soon, Md. Sultan
commenced his vocation as a freelance journalist with a handsome earning and with the latent
indulgence of different media houses of Lindia, he raised his voice for the rights of the
Barloch people and started generating collective international consensus for the liberation
movement of Barloch people.
In the month of March of 2012, Md. Sultan met a local social activist named Shazia
Khatun (daughter of Shabir Ahmed and Amina Begum), who was a Lindian citizen by birth,
residing at Chandni Chawk of Bhadrak District and belonged to an aristocrat family of
Indraprasth. Within a few meetings they discovered their mutual compatibility and love for
each other and on 24th November 2012 they were married according to Muslim personal
laws, rites and customs. Shazia’s parents were against this marriage and it took almost 2
years for the Shazia’s family to accept the marriage. However, in the meantime, Shazia
became pregnant and on 20th October 2014 she gave birth to a female child namely Ruksar.
Though initially Md. Sultan was disappointed with Shazia for not being blessed with a male
child but in a little while he became affectionate towards his girl child.
The family life of Md. Sultan and Shazia was very happy and it remained so until
Shazia yielded to peer pressure and began asking Md. Sultan to apply for the citizenship of
Lindia. But Md. Sultan was never interested in becoming a citizen of Lindia, as he had
dedicated his life for the liberation of Barloch people and he was planning to return to
Barloch with the help of Lindia and other international communities. As a result, tensions
between the couple gradually increased and Shazia left her matrimonial home on 22nd July,
2016 and took shelter in her paternal house at Chandni Chawk. Amidst these tensions and
conflicts of interest between her husband and paternal family members, Shazia developed
acute anaemia and schizophrenia for which she had to be admitted to a local nursing home at
Chandni Chawk on 29th July 2016. Further medical probe revealed Shazia to be pregnant of
3 weeks which, in turn, restored Md. Sultan's ambition for a male successor and hence,
despite the doctor's abundant warnings, Md. Sultan insisted to continue with the pregnancy.
Shazia, too, in expectation of reunion with Md. Sultan, accepted his decision.

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Md. Sultan has always been a very lovable husband and father and he brought Shazia
and Ruksar back to his house and admitted Shazia to AIIMS, Indraprasth, where he managed
to arrange the best medical assistance for her. The doctors of AIIMS also apprised Md. Sultan
of the risk of proceeding with the pregnancy but he insisted. After two weeks of treatment
Shazia was released from AIIMS and went to her matrimonial home at Mirjapur and reunited
with her daughter, husband and mother-in-law. However, she was advised to take continuous
rest and medication during her pregnancy by her doctors.
During the days of Shazia's treatment in her matrimonial home, Md. Sultan gave all
his love and paid the utmost attention to Ruksar who was being nurtured with due care and
responsibility by Md. Sultan and his mother. The parents of Shazia, on the other hand, made
several attempts to convince Shazia to terminate the pregnancy but could not persuade her
and in the month of October 2016, she even requested her parents, through an Email, (copy
was forwarded to his husband's email account) to sever contact with her and her child for the
sake of upholding peace in her married life.
Afterwards, the marital life of Shazia and Md. Sultan slowly returned to normalcy and
they even celebrated their anniversary. It seemed that the days of remorse were over until
Shazia was admitted with labour pain to a local nursing home namely 'Care & Cure' at
Mirjapur the month of April 2017. In the late night of 14th April, 2017, her condition
deteriorated and the doctors after consulting Md. Sultan performed urgent caesarean
operation and in the morning of 15th April, Shazia gave birth to another female child (Razia).
The news of birth of another girl child infuriated Md. Sultan who was fervently expecting
delivery of his male heir and out of a transitory exasperation, he even told his mother and
other relatives that he was no more interested in continuing his marital relation with Shazia
and that he wished to remarry for a male progeny.
Although, Shazia's parents were not informed initially but following her operation,
when Shazia's condition became critical, they were informed over telephone. Shazia's health
declined rapidly thereafter and she had to be admitted to Indraprasth AIIMS. The momentary
frustration of Md. Sultan was soon surmounted by the anxiety over his wife's health and
during those days Sultan remained present in the Hospital and did not return home.
In the meantime, Shazia's parents and her brother, in the absence of Md. Sultan and
Shazia, had requested Sultan's mother to allow them to take Rukshar and Razia with them, till
the homecoming of Sultan and Shazia and assuring that they would bring the two children
back soon, they took the minors with them to Chandni Chawk.

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In the hospital, Shazia fought bravely for 3 days but could not survive the aftermath of
her pregnancy and on 18th April, 2017 she breathed her last. Md. Sultan became emotionally
shattered and confined himself in his room for almost a week.
In the next week, Sultan went to Chandni Chawk to bring his girls back, but his in-
laws refused to return them. Sultan went to the Chandni Chawk Police Station to lodge an
FIR against his in-laws for kidnapping and forcefully confining his kids. But due to political
connections of his in-laws his prayer was not entertained. Surprisingly, the Mirjapur Police
Station also refused to lodge an FIR against Sultan's in-laws due to the same reason.
However, following constant persuasion by Md. Sultan, Mirjapur Police Station finally
agreed to register his information, there (vide G.D.E No. 4122 / 2017 dated 28/04/2017).
In the meantime Sultan's in-laws initiated a criminal case through Mirjapur Police
Station (Case no. 225/2017 dated 29/04/2017, under section 498-A/304-B/302/120-B of
Indian Penal Code) against Md. Sultan, Nazma Begum and the doctors of 'Care & Cure
Nursing Home' alleging inter-alia that accused Sultan and Nazma have had inflicted physical
and mental torture upon deceased Shazia during her marital life for dowry and also for her
failure to give birth to a male child. It was further alleged that they have conspired with the
doctors of 'Care & Cure Nursing Home' to provide her wrong treatment which facilitated her
death.
On the other hand, Sultan also filed an application before the 'Child Welfare
Committee' of Bhadrak (hereinafter referred to as 'the CWC') on 02/05/2017 under the
Juvenile Justice (Care and Protection of Children) Act, 2015 of Lindia (hereinafter referred as
the J.J. Act 2015), alleging inter-alia that his parents -in -law have taken away his two minor
children without his consent and have kept the minors under forceful confinement. He further
alleged that his in-laws are trying to traffic his children to some unknown destination/country
to avenge the death of their daughter Shazia.
The CWC accepted the complaint and directed opposite parties i.e. Shabir Ahmed and
Amina Begum to produce the two minors before the CWC. On the next date of hearing i.e. on
10/05/2017 the opposite parties produced the two children and submitted that according to
Muslim Personal Laws, 'in the absence of the mother of a girl child, the custody of the girl till
she attains her puberty, remains with her maternal grandmother'. They also contended that
Md. Sultan was contemplating to take the two minors out of Lindia to Pakmulk (Barloch)
where the children would face grave danger to their lives and security.
The CWC, Bhadrak heard both the sides and passed an interim order with following
observation-
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"..... Two minor children namely Razia and Rukshar have been produced before the
CWC today by the opposite parties. The minors are found to be healthy and happy. Heard
both the parties. At the very outset it has been contended by the O.P., that the issue relating
to 'Custody' of a child can be decided exclusively by the Civil Court. Besides in view of the
fact that the children are residing happily with their grandparents, they cannot be treated as
'the child in need of care and protection' under the J.J. ACT 2015 and hence the instant
proceeding is not maintainable. It has been further submitted that the two children as well as
both the parties are governed by Muslim Personal Laws and therefore O.P. being the
grandmother (mother's mother) is entitled to exercise her right of Hizanat till both the minors
attain their puberty. O.P. has also submitted that the petitioner and his mother are not
citizens of Lindia and have been arrayed as accused in Mirjapur Police Station Case no.
225/2017 dated 29/03/2017, under section 498-A/304-B/302/120-B of IPC for the death of
the mother of the two minors and therefore petitioner is not a 'fit person' to be entrusted with
the care and protection of the minors.
Upon considering the facts and circumstances and carefully perusing the documents
produced before us, we find that the petitioner Md. Sultan being the father is the natural
guardian of the two minors. He is also having sufficient means to maintain his family and the
two minors.
We have also considered that Article 18 of the Convention on the Rights of the Child
(CRC) clearly postulates that the parents have the primary responsibility for the upbringing
and development of the child. Moreover, Article 9 of the CRC also casts a duty upon the State
to ensure that a child may not be separated from his/her parents against their will. Besides it
is pertinent to note that the scheme of the J.J Act 2015 clearly suggests that it is the welfare
of the child which is of paramount consideration and not the personal laws of the concerned
parties to the proceeding.
Considering the rival submissions we are of the opinion that the interim custody of the
two minors namely Rukshar and Razia should remain with their father Md. Sultan until
further order. The opposite parties are directed to hand over the custody of the two minor
children to Md. Sultan within 3 days from this order. We, however, make it clear that Md.
Sultan shall not be permitted to take the minor children out of Lindia under any
circumstances and pending adjudication of this case the opposite parties shall have the right
to visit their grandchildren for twice every month.
The Child Welfare Officer of Bhadrak is directed to conduct a social investigation
and submit a report on the next date.
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Fix 22/05/2017 for further inquiry and necessary order".

Being aggrieved by the aforesaid order, Amina Begum the grandmother of the two
minor girls filed a Criminal Revision before the Hon'ble High Court of Indraprasth on
17/05/2017.

The criminal revision was registered as C.R.R. No. 1095/ 2017 and on 17/05/2017 the
Hon'ble High Court while admitting the criminal revision application was pleased to grant an
interim stay of the impugned order. Subsequently, the parties have filed their respective
Affidavit in Opposition and Reply. The case is now ready for adjudication and the date of
final hearing has been fixed on 21/04/2018.

The moot issues before the Hon'ble High Court are:

Jurisdiction & Maintainability:

a) Whether the Criminal Revision is maintainable in the High Court of Indraprasth?
b) Whether CWC, Bhadrak had jurisdiction to entertain the application of Md.
Sultan?
c) Whether CWC can pass order pertaining to 'interim custody' of a child considering
the fact that the issue relating to 'custody' of a child can only be decided by a
competent Civil Court?

Rights & Duties under the Constitution and International Covenants:

d) Whether the CWC while passing the impugned order ought to have considered the
personal laws of the children and the contesting parties?
e) Whether the CWC while passing the impugned order has failed to consider the
welfare of the two children, while entrusting their interim custody to Md. Sultan,
who has been implicated in a criminal case for being responsible for the death of
their mother?
f) Whether the CWC while passing the impugned order should have provided
preferential protection to the rights of the grandparents (who are respectable
senior citizens of Lindia) over the rights of Md. Sultan who has been granted
political asylum in the country?

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g) Whether the CWC while passing the impugned order restraining Md. Sultan from
leaving Lindia with his minor children has disregarded provisions of CRC and
other international covenants that are applicable herein?

Note:
All statutes & laws of the State of Lindia are pari materia with the statutes & laws of India.
Moreover, the State of Linda's commitment to the international covenants, treaties and
customary laws are same as India. On the other hand, all laws in force in the State of
Pakmulk are pari materia with the statutes & laws of Pakistan. The diplomatic, social and
political relation between Lindia and Pakmulk is also akin to that of India and Pakistan.

Disclaimer:

The above stated Moot Problem is purely imaginary and neither intends nor attempts to
resemble any incident or any person living or dead. All materials, names, characters etc. in
the problem are fictitious and do not intend to or attempt to hurt the feelings of any
community or religion. Any resemblance to any country, person or incident is unintended and
merely a coincidence.

This Moot Problem has been prepared by

Mr. Achin Jana
Advocate
Calcutta High Court

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