SAMAR KUMAR BASU NATIONAL MEMORIAL MOOT COURT COMPETITION -2023

BENCH MEMORIAL
TEAM CODE: DL – 175

SAMAR KUMAR BASU NATIONAL MEMORIAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. ____ OF 2023

IN THE MATTER OF

Mr. SANJAY BEHTA ……APPELLANT

Versus

Mrs. DIVYA SETH ….RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT OF INDIA

UNDER ARTCILE 136 OF THE CONSTITUTION OF INDIA

TO BE USED WHEN THE RESPONDENT IS ARGUING

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FACTS

1. Mrs. Divya Seth is an Indian lawyer famous for her activism for LGBT+ community .
She is married to another lawyer Mr. Sanjay Behta . Mr. Behta describes himself as a person of
traditional and orthodox thoughts. Both of them used to practice in Allahabad High Court,
Lucknow Bench. Although the couple had extreme opposing views, but they never let their
views to come in between their matrimonial life.

2. In the year 2009, the couple was blessed with a biological boy Anubhav Seth. Anubhav
was not like other boys. He liked to play with dolls instead of cars. In school, he felt more
comfortable in company of girls than that of boys.

3. Anubhav didn’t have many friends in school. Although he was excellent in studies, art
and dance, but he was always made fun of by the boys in school. In the year 2019, when
Anubhav was in 6th standard, some of his classmates started to call him gay. The poor Anubhav
didn’t know what all these meant.

4. He was subjected to consistent bullying by his classmates. The boys used to beat him,
pull his pants down and call him all kind of slangs. Even the girls used to tease him by saying
that he was one of them.

5. Hurt by these constant bullying, Anubhav started to avoid going to school by making one
excuse after another. On 01.08.2019, His parents asked him as to what was wrong, then he told
entire scenario to them. He accepted that it was true that he didn’t like to do what other boys
were doing and he felt more comfortable in the company of girls than that of boys.

6. His mother Mrs. Seth quickly came to a conclusion that Anubhav was not actually a boy
but he was a “Woman trapped in a man’s body”. She told him not to worry about it as it was
completely normal. However his father Mr. Sanjay was worried that what his son told him might
be sign of a psychological disorder . He suggested to his wife that they should take Anubhav to a
psychologist to understand if there is something wrong with him. Mrs. Seth however outrightly
dismissed the suggestion of his husband.

7. Nevertheless, On 10.08.2019 Mr. Sanjay took him to one of the India’s best psychologist
Dr. Aditya Shrivastava who had a clinic near bhool-bhulaiya in Lucknow. After thorough
examination, the doctor came to conclusion that Anubhav was suffering from Gender dysphoria.
The doctor suggested that gender dysphoria can be treated if the treatment is started early. The
treatment was to include Hormone therapy, counselling etc.

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8. Mr. Sanjay told this to his wife who got very angry. She accused Sanjay of being
homophobic and said that she was proud of her son and she won’t allow anyone to subject her
son to any kind of medical treatment.

9. Mrs. Seth was extremely supportive for her son. She always told him that there’s nothing
wrong if he feels that he is a woman or if he identifies as a woman. She assured him that she will
always stand by his side even if the world was against him.

10. Anubhav also started to feel that he was a woman trapped in a man’s body. He started to
watch documentaries about persons who claimed that they were trapped in wrong gender
identity. Anubhav was deeply inspired by the story of Caitlyn Jenner.

11. Of all the documentaries Anubhav watched, many of the persons had undergone gender
reassignment surgeries also commonly known as sex change operation.

12. Anubhav decided that he also wants to undergo sex change operation and become a
woman. He told his wish to her mother who quickly agreed to it. Mr. Sanjay however was totally
against this. He told his wife that Anubhav was too young to take such big decisions of his life .
He also told her that it’s possible that Anubhav was just confused about his identity, and as he
grows up, he might grow out of this confusion. And if not, then surely, he will become mature
enough to take such big decisions about his own life.

13. Mrs. Seth however, again rebuked him and called him homophobic. She told him that she
has had enough and she will decide what’s good for his son and what’s not. If her son wants to
become a woman, she will make sure that he becomes a woman.

14. On 01.09.2019 the couple had an ugly fight. Mr. Sanjay told her that she cannot always
have the last word, and that too in such big decisions of life of their son. He said that he also had
a right to decide as to what is right or wrong for their son. Mrs. Seth however said that it is her
who has given birth to Anubhav and thus she has the exclusive right to take decisions about good
or bad about her son. She also said that it was her mistake that she married a man with such a bad
mentality. The quarrel between the couple grew worse and in the heat of quarrel, Mr. Sanjay
slapped Mrs. Divya.

15. The next morning, 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. Upon this, both of them again had a fight and Mr. Sanjay returned to his
home.

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16. On 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.

17. Deeply hurt by actions of his wife, Mr. Sanjay Behta filed a petition for divorce on
06.02.2020 on the ground of cruelty before the family court, Lucknow. Mr. Behta has also filed a
petition for custody and guardianship of Anubhav. All of the petitions were filed in accordance
with the provisions of Hindu Law. Mrs. Behta contested all the petitions. All the
petitions/applications were clubbed together.

18. In custody suit, statement of Anubhav was recorded before the court in which he stated
that his father was a very nice person and he always fulfilled all of his demands. He never acted
cruelly with him. However, his father didn’t support him and his mother in their decision of
gender reassignment surgery. He further stated that he wants to live with both of his parents.

19. The family court vide its common judgment and decree dated 02.03.2021 granted divorce
to Mr. Sanjay on the ground of cruelty. The family court also 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.

20. Aggrieved by the judgment and decree of family court, Mrs. Divya filed an appeal before
Hon’ble Allahabad High Court, Lucknow bench.

21. The High Court vide its judgment and order dated 06.04.2022 set aside the judgement
and decree dated 02.03.2021 passed by the family court. The High Court held that supporting her
son in his decision for undergoing sex change operation doesn’t amount to cruelty. The High
Court 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 High Court also
held that Mr. Sanjay acted against the welfare of his son by not supporting him in his decision to
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.

22. Aggrieved by the judgment and order dated 06.04.2022 passed by the High Court, Mr.
Sanjay filed an appeal before the Hon’ble Supreme Court on 18.04.2022.

23. The Supreme Court had issued notices to Mrs. Divya while framing the following issues-

1. 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?

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2. 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?

3. 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?

24. Pleadings have been completed and the matter has been kept for final hearing.

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ARGUMENTS ADVANCED

1: 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?

1. It is most humbly submitted by the counsel for the appellant that the decision made by a
11-year-old child regarding the issue of gender identity and to undergo sex reassignment
surgery has no legality in the eyes of the Law. It is submitted that a minor child at the age
of 11 does not have the required mental and cognitive capacity to understand the future
risks of such irreversible surgeries.
1.1 That the minor child do not have the required mental capacity to decide on
matters of medical treatment

2. The Honorable Supreme Court Judgment in Samira Kohli vs Dr Prabha Manchanda &
Anr1, We may now summarize principles relating to consent as follows : A doctor has to
seek and secure the consent of the patient before commencing a 'treatment' (the term
'treatment' includes surgery also). The consent so obtained should be real and valid,
which means that : the patient should have the capacity and competence to consent; his
consent should be voluntary; and his consent should be on the basis of adequate
information concerning the nature of the treatment procedure, so that he knows what is
consenting to.

1.1.1 Definition of Minor Child.

3. The definition of a minor child can be referred to section 3 of the Indian Majority
Act,1875, which reads as: “Age of majority of persons domiciled in India.-
4. (1)Every person domiciled in India shall attain the age of majority on his completing the
age of eighteen years and not before.”
5. Also, Article 1 of the UNCRC reads :“….a child means every human being below the
age of eighteen years unless, under the law applicable to the child, majority is attained
earlier.”
1
Samira Kohli vs. Dr Prabha Manchanda, ( Civil Appeal No. 1949 of 2004)

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6. Thus a person below the age of Legal Majority i.e., 18 years, is considered a minor child.

1.1.2 Mental and cognitive capacity of minor to give “informed consent”

7. Section 2(i) of the Mental Healthcare Act, 2017 defines “informed Consent”, which read
as:” informed consent means consent given for a specific intervention, without any force
, undue influence, fraud, threat, mistake or misrepresentation, and obtained after
disclosing to a person adequate information including risks and benefits of, and
alternatives to, the specific intervention in a language and manner understood by the
person.”
8. In Re Jane 2, the court held that a 17-year-old minor girl lacked competence and maturity
to decide an abortion. In another case, Belloti v Baird 3, the court stated that :
“The law provides little and real guidance to the judge and his decision must necessarily
reflect personal and societal values and mores, whose enforcement upon the minor
particularly when contrary to her own informed and reasonable decision- it is
fundamentally at odds with privacy interests underlying the constitutional protections
afforded to her decisions”
9. Early U.S. case, Smith v. seibly, 4, establishes precedent for the mature minor doctrine ,
which is widely accepted by many countries in their legislative statutes and has been
consistently applied in cases in which the minor is usually (1) near the age of majority,
usually 15 years or older,(2) displays the capacity to understand the nature and risk of the
treatment and (3) where the nature of the treatment is not “serious”.
10. The nature of treatment of Gender Reassignment Surgery is “Serious” in the sense that
it’s irreversible and hence requires a higher amount of maturity to understand the risks
and future adverse effects of the surgery.
11. In Younts v. st. Francis Hosp. & school of Nursing 5the court stated that the minor’s
ability to give informed consent was gauged by the minor’s understanding of the risks
and benefits of the medical procedure.

2
Re Jane , 566 N.E 2d 1181( Ohio 1990)
3
Belloti v Baird , 443 US 622 655-56(1979)
4
Smith v seibly, 72 Wn.2d 16, 431 P.2d 719 (1967)
5
Younts v. st. Francis Hosp. & school of Nursing ,Inc., 469 P.2d 330, 337 (1970)

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12. The Medical Council of India, in Professional conduct etiquette and ethics regulation,
2002 states :
“ 7.16 Before performing an operation, the physician should obtain in writing consent
from the husband or wife, parent or guardian in the case of a minor, or the patient
himself as the case may be.”
13. In Centerbery v. spencer 6, a test to establish the competence of the patient was
established called the centerbey test of consent. According to this test, as a universally
accepted rule, a patient must give his/her consent before going through with a surgical
procedure. Also, such consent must be an informed one.
14. A report published by the Delhi medical council dated 25th 2018 states that a minor is not
legally competent to give consent and any person of sound mind above the age of legal
majority can give consent on his own to medical procedures.
15. Section 90 of the Indian Penal Code,1860 says that consent given by a person below the
age of 12 is invalid and has no legal effect in the eyes of the Law.

1.1.3 Doctrine of parens patriae

16. Parens patriae is Latin for "parent of the nation" (lit., "parent of one's country"). parens
patriae is the inherent power and authority of a State to provide protection to the person
and property of persons non Sui juris, such as minor, insane, and incompetent persons.
17. Thus, the decision in Wallace v. Labrenz7, was that it allowed a minor child to undergo
blood transfusion surgery as it was in the best interest of the child.
18. In Heller vs. DOE, 8Justice Kennedy observed:“ The State has a legitimate interest under
its parens patriae powers in providing care to its citizens who are unable to care for
themselves.”
19. In Aruna Ramchandra Shanbaug v. Union of India & Ors., 9., the Supreme Court has
stated that :“in the case of an incompetent person who is unable to take a decision
whether to withdraw life support or not, it is the Court alone, as parens patriae, which

6
Centerbery v spencer , 464 F.2d. 772,782 D.C. Cir, 1972
7
Wallace v Labrenz, 104 N.E.2d 769 (111. 1952)
8
Heller v Doe,(509) US 312.
9
Aruna Ramchandra Shanbaug v. Union of India 2011 (3) SCALE 298

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ultimately must take this decision, though, no doubt, the views of the near relatives, next
friend and doctors must be given due weight”
20. There are two tests in relation to this doctrine. These tests help the court to ascertain the
course of action that it can adopt depending upon the situation.
1. ‘Best Interests’ Test – The ‘Best interests’ test requires the Court to ascertain the
course of action which would serve the best interests of the person in question. It is important to
note that the Court's decision should be guided by the interests of the victim alone and not those
of other stakeholders such as guardians or society in general.
2. ‘Substituted Judgment’ Test – The application of the ‘Substituted Judgment’ test
requires the court to step into the shoes of a person who is considered to be mentally incapable
and attempt to make the decision which the said person would have made, if he/she was
competent to do so. This is a more complex inquiry but this test can only be applied to make
decisions on behalf of persons who are conclusively shown to be mentally incompetent.

21. Thus the counsel humbly submits that the court in the capacity of “parens patriae”,takes
the paramount consideration of the child’s best interest and considered the tender age of
11 year to undergo Gender reassignment surgery before even exploring his/her adolescent
time creating time and space to find their own gender identity is not contributing to the
welfare of the child.

1.2 That the Right to bodily autonomy as a Fundamental Right is not an absolute right
under Article 21
22. The counsel submits that no right is absolutely absolute. There are certain limiting
principles in exercising the fundamental rights guaranteed for a person as established in
various cases.
23. This Hon’ble Supreme Court , In the case, of Suchita Srivastava v. Chandigarh
10
Administration held that the right to privacy and bodily integrity should be balanced
against the state’s interest in protecting the life of the mother and the fetus. The court
recognized that the state has a legitimate interest in regulating abortions to protect the
health and well-being of women and the potential life of the unborn child.

10
Suchita Srivastava v. chandigarh Administration, AIR 2009 9 SCC 1

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24. Similarly in Aruna Ramachandra Shaunbaug v. UOI (supra)11 this Hon’ble court held
that the right to die with dignity, including the withdrawal of life support in certain
situations, could be subject to reasonable restrictions imposed by law.
1.2.1 Minor do not have Complete autonomy over their body

25. The counsel submits that it is an established principle that Minors do not have the
required mental capacity to understand the total risk factors associated with a medical
treatment and hence are always accompanied by parental guidance.
26. In a 2006 judicial review, R (on the application of Axon) v Secretary of State for
Health,12the High Court affirmed Gillick13 in allowing for medical confidentiality for
teenagers seeking an abortion. The Axon case set out a list of criteria that a doctor must
meet when deciding whether to provide treatment to an under-16 child without informing
their parents: they must be convinced that they can understand all aspects of the advice,
that the patient's physical or mental health is likely to suffer without medical advice, that
it is in the best interests of the patient to provide medical advice, that (in provision of
contraception) they are likely to have sex whether contraception is provided or not, and
that they have made an effort to convince the young person to disclose the information to
their parents.
1.3 Sex reassignment surgery and age implications
27. Sex reassignment surgeries are medical procedures that help people transition to their
self-identified gender. Today, many people prefer to use the terms gender affirmation or
confirmation surgery. However, SRS can only be performed with the consent of patient
or guardian.
28. As quoted in Arunkumar and sreeja v. Inspector general of registration and others14

“16. ……Also, any kind of invasive medical procedure including sex reassignment surgeries
are done only after thorough assessment of the patient, obtaining justification for the
procedure planned to be conducted with the help of appropriate diagnostic test and only
after taking a written consent of the patient/guardian. “

11
Aruna Ramchandra Shanbaug v. Union of India 2011 (3) SCALE 298
12
Axon R (on the application of)v secretary of state for health & anor (2006) EWHC 37
13
Gillick v west Norfolk and wisbech health area authority [1986] AC 112
14
Arunkumar and sreeja vs. Inspector General of Registration ,W.P. (MD)No.4125 of 2019

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29. The High Court of Madras while deciding Arunkumar and sreeja v. Inspector general
of Registration (supra) observed that:
“16. ……. intersex children must be given their time and space to find their true
gender identity. But the parents make the infant undergo sex reassignment
surgery (SRS).”
1.3.1 Reference to UN and WPATH reports on GAS surgery
30. The World Health Organization has published a report titled “Sexual Health, Human
Rights and the Law”. It calls for a deferment of intersex genital mutilation (IGM) until
the intersex persons are old enough to make decisions for themselves . The following
extract from the said report would speak for itself :

“.... A major concern for intersex people is that socalled sex normalizing procedures are often
undertaken during their infancy and childhood,... As a result, such children may be subjected to
medically unnecessary, often irreversible, interventions that may have lifelong consequences
for their physical and mental health, including irreversible termination of all or some of their
reproductive and sexual capacity. Such procedures, however, are sometimes proposed on the
basis of weak evidence, without discussing and considering alternative solutions”

31. A reliance could be placed on the eligibility criteria mentioned in the world professional
association for transgender health as mentioned in section 15 of the Transgender
persons(protection of rights)act,2019 which read as :“The appropriate government shall
take the following measures in respect of transgender persons……(d)Bring out a health
manual related with sex reassignment surgery in accordance with the world profession
association for transgender health”

Under the head “criteria for surgeries” capacity to make a fully informed decision and to
consent for treatment and Age of majority in a given country is mentioned as a criteria for
undergoing GAS surgeries.

15
32. In AB v. CD and ors , the High Court ruled that parents are able to give such consent
"save where the parents are seeking to override the decision of the child" [para 114 of the
judgment].

15
AB v. CD , [2021] EWHC 741

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1.3.2 Due regard must be given to International covenants and Foreign Judgments
33. It is Submitted that a reliance could be placed on the International conventions that India
has ratified as relied upon by this Hon’ ble court while disposing vishaka v State of
Rajasthan16.
35. Article 51 of the constitution of India read as follows:-
51. Promotion of international peace and security:-
The state shall endeavor to - (a)promote international peace and
security:(b)maintain just and honorable relations between nations; (c) foster respect for
international law and treaty obligations in the dealings of organized peoples with one another;
and encourage settlement of international disputes by arbitration.

34. In the case Mohammad salimullah v UOI17, it was observed that “it is a well settled
principle that courts of Law can draw inspiration from international covenants/treaties,
so long as they are not in contravention of municipal law.”
35. In the present case as well similar interpretation can be made with regard to the United
Nation Convention for the Rights of Children that provides for a comprehensive set of
rights given for Children. Art. 3, 5,14 and 18 of the convention assures the rights of
parents/Guardians in the upbringing the child as to the evolving capacities.
36. It humbly submitted that since India has ratified the above mentioned covenant, hence,
the covenant can be used by the municipal courts as an aid to the interpretation of statutes
by applying the Doctrine of Harmonization.18
37. In meyer v. Nebraska 19and Pierce v. society of Sisters20 it was held that parents have the
authority to make medical decisions on behalf of their children.
38. Also the Government of Tamilnadu has a G.O on ban of intersex children following the
guidelines given in Arunkumar sreeja and sreeja v Inspector General of Registration
(supra).
39. In Tingley v. Ferguson, 21 , the court held that the Washington ban on Intersex children
conversion therapy was held to be valid.

16
Vishaka v. State of Rajasthan, AIR 1997 6 SCC 241
17
Mohammad salimullah v uoi, 2021 SCC Online SC 296
18
National Legal Services Authorities v Union of India
19
Meyer v. Nebraska,262 U.S 390(1923)
20
Pierce v. Society of Sisters 268 U.S. 510(1925)

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40. The counsel humbly submits that a relevance could be placed on these Foreign
Judgments and the principles established therein to have a persuasive effect on the
present case.

1.4 The Possibility of Future Regret and Unfavorable Outcomes

It is submitted before this Hon’ble S.C that Surgery is not a singular event but a longitudinal
experience. While gender reassignment surgery can accomplish some goals, it is not the golden
ticket to solving all problems related to gender affirmation. Fertility counselling is recommended
within all clinical guidelines22. Data on postsurgical outcomes refer primarily to adult patients.
Adult patient studies show that in the majority of cases surgery is beneficial, though some studies
report psychosocial poor outcomes, higher mortality, particularly from suicide, and lower quality
of life than cisgender cohorts23. Outcomes also vary because the experience of the side effects of
various interventions may be different from what the individual anticipated24. For example, a
patient may experience the inability to urinate while standing, cosmetic appearance, donor site
morbidity and scars, just to mention a few, as more (or less) frustrating than anticipated. These
are not strictly speaking surgical considerations: they are considerations about the patient's
quality of life, present and future, and the patient's satisfaction in their own unique personal and
social circumstances.

We should thus further differentiate between regret and unfavorable outcomes. ‘Regret’ might
mean that some or all surgical interventions are later regarded as a ‘mistake’ by the patient; in
these cases, patients might seek reversal surgery. Unfavorable outcomes mean that patients might
be dissatisfied with some of the features of the surgery (size of the vagina, sensitivity or
appearance), or that their quality of life has not increased in the way that was expected. Regret in
the former sense is rare. Unfavorable outcomes are less rare. Research shows that, although
adolescents might be prone to make impulsive decisions, by mid-adolescence the ability to make

21
Tingley v. Ferguson, 9th US Circuit Court of Appeals No. 21-35815
22
S. Baram, S.A. Myers, S. Yee, C.L. Librach Fertility preservation for transgender adolescents and young adults: a
systematic review, (2019)
23
C. Dhejne, P. Lichtenstein, M. Boman, A.L. Johansson, N. Långström, M. Landén Long-term follow-up of
transsexual persons undergoing sex reassignment surgery: cohort study in Sweden (2011)
24
G. Selvaggi, S. Giordano The role of mental health professionals in gender reassignment surgery: unjust
discrimination or responsible care? (2014)

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decisions on the basis of considerations of probability is comparable to those of adults in most

settings25.

It is submitted before this Hon’ble S.C that Surgery is not a singular event but a longitudinal
experience. While Gender reassignment surgery can accomplish some goals, it is not the golden
ticket to solving all problems related to gender affirmation. Everyone involved must realize that
it is possible to make the best possible informed decision and still have some regret because the
current reality is that it is almost never the perfect option, even when it is the best possible one26.
“The crucial factors which have to be kept in mind by the courts for gauging the welfare of the
children and equally for the parents can be, inter alia, delineated, such as (1) maturity and
judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5)
ability to provide continuing involvement in the community; (6) financial sufficiency and last but
not the least the factors involving relationship with the child, as opposed to characteristics of the
parent as an individual”27.

Thus based on the conclusive evidence the Counsel humbly submits that a decision made by a 11
year old kid in respect of his own welfare especially when such issue deals with the complex
gender identity, has no legality in the eyes of Law.

ISSUE II: 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?

41. One parent cannot enjoy exclusive over it’s child. When Anubhav reported to his parents
about his attraction towards the other gender, it was Mrs. Divya who quickly concluded
him to be a woman trapped in man’s body. When Mr. Sanjay opposed it, she accused him
of being homophobic and a person with bad mentality which caused mental harm to the
appellant. Also she took unilateral decision on child’s medical surgery which is
irreversible. Thus it is humbly submitted that, all these actions of Mrs. Divya Seth

25
J.M. Bernacki, A.K. Weimer Role of development on youth decision-making and recovery from gender-affirming
surgery, (2019)
26
F. Grimstad, E. Boskey How should decision-sharing roles Be considered in adolescent gender surgeries? AMA
Journal of Ethics, (2020)
27
Lahari Sakhamuri vs Sobhan Kodali AIR 2019 SC

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amount to cruelty and it to be considered as valid and enough ground to seek divorce and
custody of Anubhav to appellant as he acted in best interests of the child.
2.1 That the Mental Cruelty is within the ambit of cruelty
42. Cruelty is a ground for divorce under the Hindu Marriage act. In this case, the respondent
has caused mental harm to the appellant, therefore adding to mental cruelty which is a
valid ground for pleading divorce in this Hon’ble court. In A. Jayachandra vs. Aneel
Kaur 28, the court observed as "the expression 'cruelty' has not been defined in the Hindu
Marriage Act. Cruelty can be physical or mental. Cruelty, as noted above, includes
mental cruelty, which falls within purview of a matrimonial wrong. Cruelty need not be
physical".
43. Also in Siraj Mohamed khan v. Haizunnisa Yasin khan & Anr29, the Supreme Court
stated that the concept of legal cruelty changes according to the changes and
advancement of social concept and standards of living. It was further stated that to
establish legal cruelty, it is not necessary that physical violence should be used. “The
cruelty alleged may largely depend upon the type of life the parties are accustomed to or
their economic and social conditions, their cultural and human values to which attaches
importance”, held in Vinita Saxena v. Pankaj Pandit30
2.1.1 Section 13(1)(i)(a) of Hindu Marriage act:
44. Under Section 13(1)(i)a) of the Hindu Marriage Act,1955, cruelty is recognized as a
ground for divorce. Here the appellant herein filed a petition for divorce on grounds of
cruelty as Mrs. Divya took Anubhav, a 11year old kid for gender reassignment surgery
without the kid’s father i.e., Mr. Sanjay’s consent to it. And also for her act of marking
him as homophobic frequently.
45. In Naveen Kohli v. Neetu Kohli31 - The Hon’ble Supreme Court explained the
constitution of conduct of cruelty as "grave and weighty" reaching to a conclusion that
the petitioner spouse cannot be reasonably expected to live with the spouse. Mental
cruelty may consist of insults, verbal abuses using filthy and abusive language resulting
in constant disturbance to the mental peace of the other spouse. In Mayadevi vs. Jagdish

28
A . Jayachandra vs. Aneel Kaur (2005) 2 SCC 22
29
Siraj Mohamed khan v. Haizunnisa Yasin Khan & Anr, (1975) 2 SCC 326
30
Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778
31
Naveen Kohli v. Neetu Kohli, (2006) 4 SCC 558

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Prasad32, the court determined that any type of mental cruelty suffered by any spouse,
not just the woman, but also the man, could result in divorce on the ground of cruelty.
2.1.2 Concept of Mental cruelty

In Shobha Rani v Madhukar Reddi33 according to the supreme court , Cruelty can be "mental"
or "physical," intentional or unintentional. The conduct which inflicts upon the other spouse such
mental pain and suffering as would make it not possible for that party to live with the other is
mental cruelty. Cruelty may be physical or mental as said in Savitri Pandey vs. Prem Chandra
Pandey34. In V. Bhagat v. D. Bhagat 35- “Mental cruelty under Section 13(1)(ia) can be broadly
defined as conduct which inflicts such mental pain and suffering upon the other party making it
impossible to live with the other.”
In the case of Vishwanath Agrawal V. Sarla Vishwanath Agrawal36, it was stated that the
categories of cruelty are not closed, each case may be different. We deal with the conduct of
human beings who are not generally similar. Among human beings there is no limit to the kind
of conduct which may constitute cruelty. A new type of cruelty may crop up in any case
depending upon the human behavior, capacity or incapability to tolerate the conduct complained
of. Such is the realm of cruelty. In the case of G.V.N Kameswara Rao V. G. Jabilli37, the
petitioner was an M.D. Graduate in Child Health and had a good reputation in the area. By the
indecent behavior of the respondent, the reputation of the petitioner was tarnished. The petitioner
was forced to file the petition for divorce on grounds of mental cruelty and was granted divorce
for the same
1.2.1 Mrs. Seth’s act of marking Sanjay as homophobic and a person with bad mentality
46. When Anubhav felt like he was a woman trapped in a man’s body, Mr. Sanjay thought it
might be a psychological disorder and so he suggested taking Anubhav to a
psychologist38. But Mrs. Seth accused him frequently as homophobic and a person with
bad mentality. In Narayan Ganesh Dastane vs Sucheta Narayan Dastane39, constant
verbal abuse was held to be cruelty. In Hanumantha Rao v ramani40, making of false
allegations against the husband was held to be cruelty. Mr. Sanjay is a practicing
advocate who has good reputation and respect among the advocate society. Frequent false
allegations on him by the respondent affects his reputation in the society.

32
Mayadevi vs. Jagdish Prasad AIR 2007 SC 1426
33
Shobha Rani vs Madhukar AIR 1988 SC 121
34
Savitri Pandey vs. Prem Chandra Pandey AIR 2002 SC 591
35
V. Bhagat v. D. Bhagat, (1994) 1 SCC 337
36
2012 AIR SC 2586
37
2002 AIR SC 162
38
Moot proposition point 6
39
Narayan Ganesh Dastane vs Sucheta Narayan Dastane AIR 1975 SC 1534
40
S. Hanumantha Rao v. S. Ramani AIR 1999 SC1318

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47. In Joy deep Majumdar v. Bharti Jaiswal Majumdar41, the Supreme Court held that false
allegations and defamation against one spouse amounts to mental cruelty. Here, the
actions of Mr. Sanjay cannot be pinned as a person with bad mentality also suggesting a
thing relating to his child’s health which a normal prudent person would do in such case
cannot be termed as expressing his orthodox, homophobic thoughts. Hence the
respondent has acted cruelly against the appellant.

2.2 Unilateral decision by spouse

50. The relationship of marriage consists of both husband and wife. The respondent herein,
acts as though she is the only person in the relationship. There is no interest in, and
fundamentally no regard for, the preferences, experience and welfare of the other appellant in
the actions of the respondent. This kind of behavior deprives the appellant’s rights.

2.2.1 Both parents have equal rights on child

On behalf of their children, parents have the duty and power to make medical decisions. Both
the father and mother have equal rights over the child. In this case, where a decision is a
matter of huge concern that decides the rest of the life of their child, both the parent must
consent to it. Decision making includes both the parents and it is not confined to a single
parent i.e., in this case the mother. The actions of Mrs. Seth saying that only she has
exclusive rights over Anubhav since she gave birth to him deprives Mr. Sanjay from his
rights towards his child.
In the case of Samar Gosh v Jaya Gosh42 , the husband alleged that his wife made a
unilateral decision to not have a child and asked him to leave her flat, thereby humiliating
him, and refused to cohabit with him. The court found that the wife’s conduct amounted to
mental cruelty. Thus, Mrs. Divya has taken a unilateral decision by taking Anubhav to
gender reassignment surgery without and against the consent of his father i.e., the appellant.
2.3 Consent of the child
It is humbly submitted that the consent given by Anubhav to his gender reassignment
surgery, at this tender age of 11 is not a valid one. Firstly, his consent was not pure as he was

41
Joy deep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146.
42
Samar Gosh v Jaya Gosh (2007) 4 SCC 511

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passively influenced. Secondly, consent given by a 11year old regarding his major life
decision which is irreversible in nature cannot be considered as a valid consent.
2.3.1 Section 90 of Indian penal code:
48. As per section 90 of Indian penal code consent given by a person under the age of 12 is
not considered to be consent. Also, consent given by person who is unable to understand
the nature and consequence of that which he gives his consent to cannot be considered as
a valid one. Thus, it is humbly submitted that the consent given by Anubhav is not valid.
The child is just a 11year old kid and it is not well mature enough to handle such
situations
2.3.2 Joint statement released by various UN bodies:
49. The Office of the United Nations High Commissioner for Human Rights convened a first
expert meeting on ending human rights violations against intersex persons in September
2015. In his opening remarks, then High Commissioner Zeid Ra’ad Al Hussein
highlighted the seriousness of human rights violations faced by intersex people,
combined with the stigma and taboo attached to being intersex, lack of investigation and
prosecution of violations, impunity for perpetrators, absence of remedy, and a cycle of
ignorance and abuse. A joint statement released by various UN bodies in 2015
condemned performance of medically-unnecessary SRS on intersex persons without their
informed consent and termed it as a human right violation.
2.3.3 Consent given by parent on behalf of child:
50. In Amutha vs. C. Manivanna Bhupathy43, it was held that, consent of a parent cannot be
considered as the consent of the child. In Arunkumar v. The Inspector-General of
Registration(supra), Justice Swami Nathan made an elaborate discussion on the
problems faced by intersex persons. He disapproved the performance of sex reassignment
surgery on intersex infants solely based on parental consent, as it could have life-long
mental and physical consequences for the children. Perhaps, his most important
observation in the judgment was that “the consent of the parent cannot be considered as
the consent of the child.”

43
Amutha vs. C. Manivanna Bhupathy (2007) SCC Online Mad 14

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51. In two cases, Pickup v. Brown44 and Doe v. Christie45, the US Courts upheld the validity
of statutes which prohibited parents from requiring their child to undergo conversion
therapy, which is a medical practice that attempts to change an individual’s sexual
orientation. In both these cases, the courts ruled that the parents’ right to “care, custody
and control of their children” can be legitimately curtailed by the state if it is of the
considered view that a particular medical treatment consented to by the parent is not in
the best interest of the child.
2.3.4 Passive influence on Anubhav’s consent:
52. At first Anubhav was not aware of the concept of transgender. He was just attracted
towards feminine things. When he explained his conditions to Mrs. Seth., it was her who
quickly came to the conclusion that Anubhav was a woman trapped in man body, which
created a new concept of transgender in the mind of little Anubhav. Anubhav decided to
go for gender surgery by passive influence of documentaries that he watched. Of such
documentaries that Anubhav watched, the story of Caitlyn Jenner had great impact on
him.
53. As per WPATH’s Standards of care for the health (version 7) of transsexual, transgender,
and gender nonconforming people, children who belong to social transition in early
childhood state that they want to make a social transition to a different gender role long
before puberty. For some children, this could be motivated by other forces.
2.4 Support for such irreversible surgeries is against the welfare of child:
54. The psychiatrist who treated Anubhav regarding this does not suggest sex reassignment
surgery. Rather, his opinion was to first go with hormone therapy, counselling etc., the
kid is a 11year old and there are many chances that he may change his decision further in
his life. It is the duty of the parents to think and act in a rational manner. According to
WPATH’s Standards of care for the health (version 7) of transsexual, transgender, and
gender nonconforming people, Genital surgery should not be carried out until (i) patients
reach the legal age of majority to give consent for medical procedures in a given country,
and (ii) patients have lived continuously for at least 12 months in the gender role that is
congruent with their gender identity. In the case of Ganesh Narayan Nagarkar Vs

44
Pickup v. Brown (12-17681)
45
Doe v. Christie 33 F. Supp. 3d 518 (2014)

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46
Vishnu Ramchandra Saraf, it was stated by the court that unfair advantage is the
advantage or enrichment which is obtained through unjust means. Here Mrs. Divya Seth
took an unfair advantage over his child and took him for gender reassignment surgery.
Hence a unilateral parental support in such important medical aspects of a minor child is
against the welfare of the child

2.4.1 Impact on the rights of the child:

55. These surgeries are greatly invasive and their outcome is irreversible. Intersex children
are, thus, deprived of the right to determine their gender identity and sexuality due to a
medical procedure to which they were incapable of giving consent. Their bodily
autonomy and privacy are also endangered due to the invasiveness of the medical
procedure involved. Hence their right to freedom and expression provided under Article
19 of the Indian constitution is being taken away from the child. And here his own
mother becomes the reason for such fundamental violation.

2.4.2 Effects of early sex reassignment surgery:

56. It is humbly submitted that, as said in the WPATH’s Standards of care for the health
(version 7) of transsexual, transgender, and gender nonconforming people, gender
dysphoria during childhood does not inevitably continue into adulthood. Rather, in
follow-up studies of prepubertal children (mainly boys) who were referred to clinics for
assessment of gender dysphoria, the dysphoria persisted into adulthood for only 6–23%
of children. Boys in these studies were more likely to identify as gay in adulthood than as
transgender.

ISSUE III. 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?

57. Both the parents have equal rights and responsibilities over their child. When Mrs. Seth
quickly came to a conclusion that Anubhav was not actually a boy but he was a “Woman
trapped in a man’s body”. She told him not to worry about it as it was completely normal.

46
Ganesh Narayan vs Vishnu Ramchandra (1907) 9 BOMLR 1164

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However his father Mr. Sanjay was worried that what his son told him might be a sign of
a psychological disorder . He suggested to his wife that they should take Anubhav to a
psychologist to understand if there is something wrong with him. Mr.Sanjay is not acting
against the welfare of the child , since those actions taken by him are based on the sole
concern of their child.

3.1 Gender reassignment surgery for a 11 year old kid

58. Gender affirmation surgery is the last step in the medical transition. It is considered to be
irreversible and is technically demanding to perform, even for experienced surgeons.
According to WPATH Standards of Care, a criterion for eligibility for GAS is “reached
legal age of maturity in a given country.” Presumably, the threshold is 18 years of age in
most countries. The main “technical” issue in case of children treated with puberty
blockers lies in their undeveloped genitalia. Thus, the GAS will be more troublesome,
especially in case of penile inversion vaginoplasty. Some authors reported autologous
skin grafting from donor sites or use of bowel segments as viable solutions for this issue.
However, the main concern is the possibility of regret after the GAS. The results of GAS
in transgender minors and their possible regret are a great cause of concern and a huge
responsibility for medical professionals.
59. In the case, Kings College Hospital NHS Foundation Trust vs C 47, It is said that,
Assessing a patient’s capacity when they make a decision that is considered unwise.
1.1.1 Main Ethical Principle
60. The surgery involves autonomy, beneficence, non-maleficence, and informed consent. In
48
the case of Schloendorff v. Society of New York Hosp., It is stated that informed
consent means permission granted in full knowledge of the possible consequences,
typically that which is given by a patient to a doctor for treatment with knowledge of the
possible risks and benefits. The individual must have autonomy of thought and intention
when making decisions about medical treatment. This is an especially sensitive field in
treatment of gender dysphoria, because sometimes the individual's desires, hopes, and
expectations might not correlate with reality.

47
Kings College Hospital NHS Foundation Trust vs C [2015] EWCOP 80
48
Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914)

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61. In the case of Samira Kohli (supra) it is said that the patient has the minimum of an
adequate level of information about the nature of the procedure to which he is consenting
to. On the other hand, the concept of 'informed consent' developed by American courts,
while retaining the basic requirements of consent, shifts the emphasis on the doctor's duty
to disclose the necessary information to the patient to secure his consent.

1.1.2 Examining Medical necessity

62. .Transgender persons require safe and effective hormonal support to develop the physical
characteristics that affirm their gender identity. The main indications for the beginning of
hormonal therapy are confirmed persistence of gender dysphoria and adequate mental
capacity to give informed consent and accept this partially irreversible treatment.
According to the most recent Endocrine Society guidelines, most adolescents develop this
capacity by the age of 16. The main “technical” issue in case of children treated with
puberty blockers lies in their undeveloped genitalia. Thus, the GAS will be more
troublesome, especially in case of penile inversion vaginoplasty.
63. In the case , Montgomery v Lanarkshire Health Board 49,the court held that there
involves the duty to make sure that patients are aware of any material risks involved in
treatment and any reasonable alternative treatment options.
1.1.3 The importance of seeking professional expertise
64. The most widely adopted care model is the Standards of Care 7 (SoC7) offered by the
World Professional Association for Transgender Health (WPATH). According to
WPATH, mental health professionals are best prepared to diagnose and assess eligibility
given their specific training and as medical treatment is intensive, often life-long and
(partially) irreversible. This arguably makes their role into that of a ‘gatekeeper’; a role
that is not without ethical challenges. Clients argue ‘gatekeeping’ interferes with
‘autonomous’ decision-making , while mental health professionals note the strain it puts
on the therapeutic relationship, decision-making process and consequently their ability to
offer good care .
65. In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and
Anr., 50and A.S.Mittal v. State of U.P., 51 it was laid down that when a doctor is

49
Montgomery v Lanarkshire Health Board [2015] UKSC 11

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consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of
care in deciding whether to undertake the case, (b) duty of care in deciding what
treatment to give, and (c) duty of care in the administration of that treatment.
66. Sex characteristics of children concern a part of their identity (Davis, 2016). By
interfering with their bodies without children’s consent, their right to identity is violated,
as their identity has to be preserved (CRC, 1989; Sandberg, 2019). Since self-
determination of one’s own body is a core part of one’s identity, medical interventions
must be delayed until children are of an age to give informed consent.
67. This decision-making process must be accompanied by peer consulting experts outside
the medical setting .In this way, children are prevented from deciding to undergo medical
procedures due to social pressure.
1.1.4. Sanjay actions was not against welfare of the child
68. Mr. Sanjay took him to a psychologist. After thorough examination, the doctor came to
the conclusion that Anubhav was suffering from Gender dysphoria. The doctor suggested
that gender dysphoria can be treated if the treatment started early. The treatment was to
include Hormone therapy, counseling etc.52
69. In cases such as Re B, 53Re J 54and Re W55, the court was asked not only to determine
the child’s best interests but also to clarify the duties of the local authority, Trust, court
and child’s parents to the child. The respective duties established apply to all involved in
cases brought before the courts on the question of a child’s future medical treatment,
whether or not the child is in the care of the state. Recent cases concerning the medical
treatment of seriously ill children have involved claims of parental authority to
determine the care of their child. To the contrary, that court involvement is required
when parents disagree with the child’s treating doctors over the child’s medical treatment
because of public as well as parental and professional responsibilities for the welfare of
all children.
3.2 GAS is not the only available treatment for gender dysphoria.

50
Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128
51
A.S.Mittal v. State of U.P., AIR 1989 SC 1570
52
Moot proposition point 7
53
Re B 1981(1) WLR 142
54
Re J 1990(3)All ER 930
55
Re W 1992 (2) FCR 785

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70. It is submitted that depending on age and preferences, certain other treatments are
available.
• Hormone therapy to increase masculine or feminine characteristics.
• Puberty blockers to prevent you from going through puberty.
• Voice therapy to adjust your voice or tone or help with communication skills, such as
introducing yourself with your pronouns.
3.2.1 Concept of Social transition
71. Social transition (i.e., living in their affirmed gender rather than their gender assigned at
birth, which may involve changing their physical gender markers such as hair and
clothing as well as their name and gender pronouns) will also help people overcome their
mental health issues.
3.3 Welfare of the child
56
72. In the case of Sheoli Hati v. Somnath Das, it is said that After a marriage breaks
down or ends up in separation of spouses, the person who gets affected the most is the
children who are born out of the marriage. While taking a decision regarding custody or
other issues pertaining to a child, “welfare of the child” is of paramount consideration.
3.3.1 Factors which constitutes the welfare of the child.
57
73. It was held in Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari that the child's
welfare encompasses factors such as upbringing, the guardian's economic well-being, the
child's comfort, contentment, health, and education.
74. In general, the welfare of the child is determined by factors such as the child's physical
and mental condition, each parent's physical and mental condition, the child's relationship
with each parent, the child's needs regarding other important people like siblings,
extended family members, peers, etc., the role each parent has played and will play in the
child's care, and each parent's ability to support the child's contact and relationship with
others. These elements, however, are not exhaustive, and some statutes specifically
provide that courts must examine such circumstances as the court deems necessary and
proper to the determination.
3.3.2 Concern about child future

56
Sheoli Hati v. Somnath Das, (2019) 7 SCC 490
57
Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari,2019 7 SCC

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75. Sanjay told his wife that Anubhav was too young to take such big decisions of his life .
He also told her that it’s possible that Anubhav was just confused about his identity, and
as he grows up, he might grow out of this confusion. And if not, then surely, he will
become mature enough to take such big decisions about his own life.
76. In this case,Gaytri Bajaj v. Jiten Bhalla, 58it is said that The desire of the child coupled
with the availability of a conducive and appropriate environment for proper upbringing
together with the ability and means of the parent concerned to take care of the child are
some of the relevant factors that have to be taken into account by the court while deciding
the issue of custody of a minor.
3.4 Custody and guardianship of the child
77. Mothers and fathers both have a prominent role to play in supporting the growth and
development of their children. The basic opinion of the child and the mother is highly
ignored while determining the custody of the child. Child custody is being awarded to the
parent keeping in view the best interests of the child.In Mausami moitra ganguli v.
Jayant Ganguli, 59it said that while determining the question as to which parent the care
and control of a child should be committed , the first and the paramount consideration is
the welfare and interest of the child and not the rights of the parents under a statute. The
Orissa High Court in case Sobha Devi v. Bhima 60, lays down the next friend ideology
and states that the mother cannot play the part of being a next friend as long as the father
is alive.
3.4.1. Hindu marriage act
Section 26 of Hindu Marriage Act 1955 deals with the maintenance, education and
caring of a child and validates the child's custody if both the parents follow Hindu
religion.
3.4.2 Hindu minority and guardianship act
As per Sec 6 of the Hindu Minority and Guardianship Act, 1956, a Hindu child below
the age of 5 years shall be kept under the custody of the mother as at this age it is only the
mother who can give proper emotional, moral as well as physical support to the child.

58
Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
59
Mausami moitra ganguli v. Jayant Ganguli (2008) 7 SCC 673
60
Sobha Devi v. Bhima AIR 1975 Ori 180

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78. The custody of a boy or an unmarried girl below the age of 18 years and above the age of
5 years shall be given to the father of the child as he is considered to be the natural
guardian and only after his death the custody shall be given to the mother.
79. In the case of Gita Hariharan v. Reserve Bank of India 61, the validity of section 6(a) of
Hindu Minority and Guardianship act, 1956, was challenged where the word “after” was
debated ,the term after was described as in the absence of father.
62
80. In the case , Vikram Vir Vohra v. Shalini Bhalla, it is said that The principles laid
down in proceedings under the Guardians and Wards Act, 1890 are equally applicable
in dealing with the custody of a child under Section 26 of the Hindu Marriage Act, 1955,
since in both the situations two things are common: the first, being orders relating to
custody of a growing child and secondly, the paramount consideration of the welfare of
the child. Such considerations are never static nor can they be squeezed in a straitjacket.
Therefore, each case has to be dealt with on the basis of its peculiar facts.
81. In the case, Nil Ratan Kundu v. Abhijit Kundu,63it is said that, A court while dealing
with custody cases, is neither bound by statutes nor by strict rules of evidence or
procedure nor by precedents. The court has to give due weight to a child’s ordinary
comfort, contentment, health, education, intellectual development, and favorable
surroundings. But over and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent preference or judgment,
the court must consider such preference as well, though the final decision should rest
with the court as to what is conducive to the welfare of the minor.
82. Hence it is humbly submitted before this Hon’ble SC that the acts of the Appellant Mr.
Sanjay is contributing towards the welfare of Anubhav.

61
Gita hariharan v Reserve bankof india , AIR 1999,2 SCC
62
Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409
63
, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413

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