Delhi District Court
Ajay Maini vs Ashok Kumar Maini And Ors. on 1 November, 2014
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
Suit No. 260/14
Ajay Maini VS Ashok Kumar Maini and ors.
ORDER
This order of mine will dispose off the application of plaintiff filed under Order 12 Rule 6 CPC seeking passing of judgment and decree on the basis of admission of defendants in WS.
Plaintiff Ajay Maini has filed the present suit for declaration with the facts that plaintiff is younger brother of defendant no. 1 and brother in law (devar) of defendant no. 2. Plaintiff had earlier got married with one Rekha Main in 1989 however due to temperamental differences both plaintiff and his wife started living separately from 27.01.1999. Their matrimonial disputes could not be reconciled despite best efforts made by the relatives, mutual friends etc. for reconciliation and resumption of matrimonial relationship. Therefore, plaintiff had earlier filed the divorce petition in January 2000. Due to intervention of their families, plaintiff and his wife agreed to dissolve their marriage, mutually being irretrievably broken down. A decree of divorce was granted in favor of the plaintiff and his wife on 23.03.2008. It is stated that during the period when plaintiff was living separately from his wife Rekha Maini, plaintiff had started living with one Sandhya Kapoor in a liveinrelationship. During that liveinrelationship parties gave birth to a girl child namely Rakshita Kapoor @ Sara on 08.07.2003. However, due to legal technicalities and implications plaintiff was not in a position to give his name to the baby girl Rakshita @ Sara. However, after the grant of divorce decree plaintiff got married with Page No. 1/4 Sandhya Kapoor on 13.04.2008 and got their marriage registered at Arya Smaj Gurukul, Ashok Vihar.
It is stated that an adoption deed was executed on 18.05.2007 wherein Sandhya Kapoor gave the baby girl Sara in adoption to defendant no. 1 and
2. Same was not conveyed to plaintiff by defendants nor consent of the plaintiff was taken being biological father. Above said baby girl Sara is a naturally born daughter of plaintiff and plaintiff being biological father of her as stated baby girl had born due to his liveinrelationship with one Sandhya Kapoor. It is stated that mother of the girl namely Sandhya Maini @ Sandhya Kapoor had also expired on 06.06.2008. It is stated that since the adoption of the baby girl Sara was not strictly in accordance with the provisions of Hindu Adoption and Maintenance Act and in violation of Section 11(ii) and it is also necessary to note that defendant no. 1 is a patient of Neuropatio (neurological disease). It is stated that adoption deed dated 18.05.2007 which was duly registered before the SubRegistrarI, New Delhi entered in Book No. 3, Vol. no. 684, page no. 8386 having registration no. 4836 to be declared null and void.
Summons were issued to defendants. Defendants have appeared and filed the WS wherein it is stated that defendant no. 1 is the patient of Neuro patio (a neurological disease) on account of which defendant no. 1 is bed ridden since 2009. On his behalf WS has been filed by his wife (defendant no. 2). Defendants have however stated that they have no objection if the plaintiff is being declared natural and biological father of Rakshita Maini and the adoption deed in question be declared to be null and void. All the facts as stated in the plaint have not been disputed.
Keeping in view the fact that facts stated in the plaint have been admitted in total, present application has been moved seeking for decree of Page No. 2/4 present suit on admission in terms of Order 12 Rule 6 CPC. I have heard ld. Counsel for the plaintiff and has gone through the record carefully. It is very much evident from the facts as stated in the plaint that baby girl Sara @ Rakshita Maini had born out of the liveinrelationship between plaintiff and Sandhya Kapoor during the time when plaintiff's marriage with Rekha Maini was subsisted though both spouses were living separately. Evidently for this reason the natural mother of the girl namely Sandhya Kapoor had executed the adoption deed in favor of defendant no. 1 and 2. It is also matter of record that subsequently the marriage of the plaintiff with Rekha Maini was dissolved by mutual decree of divorce of 23.03.2008. And thereafter, plaintiff got married with Sandhya Kapoor on 13.04.2008. However, unfortunately the second wife of the plaintiff had also expired on 06.06.2008. Now, plaintiff being the biological father of the girl Rakshita Maini seeks to declare the adoption deed in favor of defendants to be null and void.
Now, question arises whether a discretion should be exercised in facts of the present case to decree the suit under Order 12 Rule 6 CPC. It be noted that plaintiff is seeking relief of declaration to declare a registered adoption deed to be null and void which was executed by Late Sandhya Kapoor. In such circumstance when it is not clear as to whether there is any legal right or entitlement existing in favor of plaintiff within the meaning of Section 34 of Specific Relief Act, relief of declaration cannot be given. Specifically in the facts of the case where it is clear that firstly to avoid the legal implications or liabilities of giving birth to a child from another woman than his wife, during the time when marriage of the plaintiff with Rekha Maini was subsisting, child was given in adoption to defendant no. 1 and 2 who happened to be elder brother and sister in law of plaintiff.
Another important aspect to be noted here is that plaintiff is seeking to Page No. 3/4 declare adoption deed null and void. A registered document can be declared null and void only upon proof of some fraud or illegality, declaratory relief of getting a registered document to be null and void cannot be given for the emotional reasons of parties. During the argument no doubt ld. Counsel for the plaintiff made a submission that court must show some indulgence to avoid the possible difficulties with the child who has already lost her mother. I have all emotions and sympathy with the child but while giving thoughtful consideration to the facts I find myself helpless in law to give a relief of declaration when same to my understanding cannot be given. Process of judicial system cannot be allowed to undo a legally carried out process, when there is no reason for doing so. In the present case even it is also not clear as to whether cancellation of such adoption deed would be for ultimate welfare of the child or not. If the plaintiff being the biological father of the child is interested for her betterment he can still do so without even getting the adoption deed declared to be null and void. Which otherwise also not possible in the facts pleaded in the case. Therefore, application stands dismissed.
Announced in open court on 1th November 2014 SH. SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 4/4