Delhi District Court
Smt. Geeta Kumari vs Krishan Kumar on 4 May, 2009
-: 1 :- G.No. 218/06
IN THE COURT OF SHRI VIDYA PRAKASH:
GUARDIANSHIP JUDGE: DELHI
G.No. 218/06
Smt. Geeta Kumari ...Petitioner
Versus
Krishan Kumar ...Respondent
ORDER
This order shall dispose of application U/o 7 rule 11 CPC dated 5.9.08 for dismissal of the present petition as well as application U/o 14 rule 5 CPC dated 5.9.08 for framing of additional issue regarding maintainability of the present petition, moved by respondent no. 3.
I have already heard Ld counsels for the parties. I have also carefully perused the material available on
-: 2 :- G.No. 218/06 record including the authorities cited at the bar.
Brief facts relevant for deciding the said two applications are that petitioner is natural mother of the girl child namely Ms. Sanya whereas respondent no. 1 is the natural father of the said child and respondents no. 2 and 3 are brother in law and sister in law of the petitioner. The child in question was born on 1.10.05 out of the wedlock of petitioner and respondent no. 1. It is stated that one female child namely Kumari Purnima was born out of the wedlock of respondents no. 2 and 3. It is alleged that respondent no. 1 was jobless and represented the petitioner that they should obtain divorce on papers in India as they will not be able to get visa for going to Belgium as married and after reaching Belgium, they would continue to live as husband and wife. The petitioner believing the words of respondents and without understanding the bad intention of the respondents, agreed to such proposal and obtained divorce by way of -: 3 :- G.No. 218/06 mutual consent on 28.3.06 despite the fact that she was not ready and willing to give divorce to respondent no. 1. Respondents no. 2 and 3 also represented the petitioner that their daughter i.e the child in question will still not get visa and made her to execute adoption deed of the child Ms. Sanya in their favour and got the same registered on 28.4.06. She had also claimed that the statements given by her before Matrimonial Court were not voluntarily and the child continued to be with her even after execution of the Adoption Deed. She has further claimed that the respondents had taken away the custody of child on 04.05.2006 on the pretext of producing her before High Commission of Belgium. Thereafter, the petitioner was thrown out of matrimonial house and then came to know about the fraud played by the respondents. The petitioner has also challenged the said adoption deed in the present petition by seeking a decree for declaring the said adoption deed dated 28.4.06 -: 4 :- G.No. 218/06 as null and void ab-initio besides decree of permanent injunction for restraining the respondents from removing the child in question from territorial jurisdiction of this Court. She has also claimed decree in the form of direction to the respondent no. 1 for handing over the custody of girl child to her. The grounds of challenge of said adoption deed as mentioned in the petition, are not relevant for the purpose of deciding the applications under consideration and therefore,are not being discussed herein.
The respondent no. 1 in his written statement has taken the stand that petitioner had agreed not to institute any suit or proceeding against him as well as against his relatives in any Court with respect to divorce proceedings etc. The child is not in his custody and he has been unnecessarily impleaded as a party in the present petition. He has further claimed that the petitioner is well educated lady with criminal record as -: 5 :- G.No. 218/06 FIR no. 89/2005 under Section 419/420/468/471 IPC with PS IGI Airport for travelling on forged passport, is pending against her. He has denied that the divorce was obtained on false representation for the purpose of arranging VISA. He has also denied the other allegations made in the petition including the allegation that he was jobless or made any misrepresentation to the petitioner. According to said respondent, the custody of the child was given to the petitioner by him in decree of divorce by mutual consent. Thereafter, the petitioner threw the child in front of the respondent and declined to maintain her and also told that she would sell the child to the foreigners on which she was suggested by respondents no. 2 and 3 to give the child in adoption to them. Petitioner accepted the proposal and executed the adoption deed on 28.04.2006.
Respondents no. 2 and 3, in their joint written statement, took preliminary objection that present -: 6 :- G.No. 218/06 petition is not maintainable as the petitioner is not the guardian of the child either within the meaning of G&W Act or under Hindu Minority and Guardianship Act. They have also claimed that the petitioner was not interested in the nourishment of the child and had abandoned the child. They have also levelled certain allegations regarding the conduct of the petitioner and her previous background. According to them, petitioner left the baby with them after divorce from respondent no. 1 and also threatened to sell the child to foreigners or to send the child to some orphanage. The respondents therefore sought that petitioner should execute the adoption deed which she willingly did on 28.04.2006. It is also claimed that the petitioner is bent upon to harass them in order to extort money. They have denied that the petitioner live in matrimonial home till 04.05.2006. The petitioner was always fond of the company of her sister and their relatives after marriage and there were -: 7 :- G.No. 218/06 temperamental differences between the petitioner and respondent no. 1 due to which they had agreed to file divorce by mutual consent. They have also claimed that the petitioner had willfully neglected and relinquished all her maternal right and was never a responsible mother.
In the application under Order 7 rule 11 CPC, respondent no. 3 has claimed that the child in question was given in adoption by petitioner and petitioner is challenging the validity of the said adoption by way of present petition which this Court has no jurisdiction to do and therefore, the petition should be dismissed.
Ld. Counsel for respondent no. 3 had argued that this Court cannot decide the issue of validity of adoption deed as same is within the exclusive domain of Civil Court. Ld. Counsel had argued that in case prayer clause (c) regarding cancellation of adoption deed is not granted by the Court then the prayer clause (a) regarding grant of custody of the child can also not be granted to -: 8 :- G.No. 218/06 the petitioner. Ld. Counsel had also submitted that the petitioner is not the guardian of the child within the meaning of provisions of G&W Act as well as Hindu Minority and Guardianship Act and therefore, she cannot seek the custody of child unless and until the adoption deed is declared as null and void by competent Court of law. Another bone of contention raised by Ld. Counsel was that petitioner is not alleging the adoption deed to be a forged document and is admitting to have executed the said deed on 28.04.2006 and therefore, this Court has got no jurisdiction to declare such adoption deed as null & void as Guardianship Judge.
On the other hand, Ld. Counsel for petitioner had referred to the preamble of G&W Act as well as to the provisions contained in Section 7, 39 and 41 of the said Act in support of her submission that the entire provisions of the Act are to be read as a whole and the provisions contained in G&W Act are exhaustive enough -: 9 :- G.No. 218/06 to enable this Court for declaring such adoption deed as null & void. Next limb of argument of Counsel for petitioner was that relief of custody of child is the main relief whereas the relief for declaring the adoption deed as null & void, is consequential relief arising out of the main relief itself. Ld. Counsel had also submitted that said adoption deed is in violation of Section 11 (ii) of Hindu Adoption and Maintenance Act. In support of her submissions, Ld. Counsel has relied upon the following authorities :-
1. 1956 Supreme Court 604
2. 1980 (Supp.) Supreme Court Cases 420
3. (1996) 11 SCC 23
4. AIR 1988 SC 752
5. AIR 2008 SC 1250
6. 106 (2003) DLT 632
7. (1985) 3 SCC 103 Before dealing with the application under -: 10 :- G.No. 218/06 consideration, it is relevant to refer to the provisions of G&W Act as well as Hindu Adoption and Maintenance Act and Hindu Minority and Guardianship Act.
The term "guardian" has been defined in Section 4 (2) of G&W Act which reads as under :-
"(2) - "guardian" means a person having the care of the person of a minor or of his property or of both his person and property"
Section 7 (1) of G&W Act confers power on Court for appointing guardian of a person or property or both in respect of a minor or for declaring any person to be such guardian of the minor. Section 7 (2) of the said Act clearly provides that any order passed in the foregoing sub Sections shall imply removal of any guardian who has not been appointed by Will or other instrument or appointed or declared by the Court. In other words, the -: 11 :- G.No. 218/06 order either appointing guardian of minor or declaring any person to be guardian of such minor, can be at the instance of those persons who are seeking removal of guardian not appointed by Will or other instrument. The term "other instrument" also includes adoption deed.
Section 25 of the said Act provides that whenever any minor leaves or is removed from the custody of his/her guardian then the Court after satisfying itself that it shall be for the welfare of such minor to return his / her custody to the said guardian, may pass appropriate order for his return. Section 39 of the said Act speaks of certain situations where the Court may either on the application of interested party or on its own, remove the guardian appointed or declared by the Court or the guardian appointed by Will or other instrument.
Section 4 (b) of Hindu Minority and Guardianship Act also defines the term "guardian" and reads as under :-
-: 12 :- G.No. 218/06
"(b) - "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes -
(i) a natural guardian,
(ii) a guardian appointed by the will of the monor's father or mother,
(iii) a guardian appointed or declared by a court, and,
(iv) a person empowered to act as such by or under any enactment relating to any court of wards; Section 6 of Hindu Minority and Guardianship Act further provides that the natural guardian of Hindu Minor in case of boy or unmarried girl shall be the father and after him, the mother but the custody of minor who has not completed the age of five years shall ordinarily be with the mother.-: 13 :- G.No. 218/06
Section 7 & 8 of Hindu Adoption and Maintenance Act deals with the capacity of male Hindu or female Hindu to take in adoption whereas Section 11 of the said Act provides the conditions which should be fulfilled in order to constitute valid adoption under the law.
Section 12 of the said Act, in clear and express terms, provides that an adopted child shall be deemed to be the child of his / her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his / her birth shall be deemed severed and replaced by those creative by the adoption in the adopting family.
Section 16 of the said Act further provides that whenever any registered document purporting to record an adoption is produced before the Court, the Court shall presume that the adoption has been made in compliance with the provisions of said Act unless and until it is -: 14 :- G.No. 218/06 disproved.
Having judged the facts and circumstances of the present case in the light of aforementioned provisions of said three different statutes, the Court is of the view that unless and until the adoption deed dated 28.04.2006 by which the child in question namely Sanya was given to respondents no. 2 and 3, is declared null & void, respondents no. 2 and 3 shall be deemed to be the lawful guardian of the said child. The present petition has been filed by petitioner under Section 25 of G&W Act as well for declaration of said adoption deed as null and voild with consequential relief of injunction for restraining the respondents from removing the said child from the jurisdiction of this Court. As already discussed above, Section 25 of G&W Act shall come into operation only in case of removal of the child from the custody of the guardian. The Court does not find any merit in the submission of Ld. Counsel for petitioner that execution of -: 15 :- G.No. 218/06 adoption deed necessarily results in the removal of child in question from the custody of petitioner. The removal of child from the custody of guardian means the removal of child from the custody of lawful guardian and it cannot be stretched to include within its sweep such type of instance where petitioner who has approached the Court, executed adoption deed in respect of child and still claiming such child to have been removed from her custody because the custody of such child cannot be said to have been removed by any illegal or unlawful means or even forcefully. For this very reason, the argument of Counsel for petitioner that relief of declaration of adoption deed as null & void is subsidiary or ancillary relief to the main relief of custody of child, does not hold any ground. Unless and until the adoption deed in question is declared as null and void, the petitioner cannot be granted relief of custody of child in question. The Court also does not find any force in the submission -: 16 :- G.No. 218/06 made on behalf of petitioner that the provisions of G&W Act are exhaustive enough to empower this Court for declaring such adoption deed as null & void. The legislature has enacted the Hindu Adoption and Maintenance Act 1956 with a great purpose and object. The said Act is a complete code in itself and contains all the necessary provisions as well as remedies concerning adoption of any minor governed by the said Act. That being so, the argument that this Court can declare adoption deed as null & void seems to be totally misplaced. Admittedly, the power to declare any such adoption deed as null & void lies within the exclusive domain of Civil Court, this Court while acting as Guardianship Judge, cannot exercise such power of Civil Court and declare the adoption deed in question as null & void. In the entire petition, the petitioner has not averred at all that the present case is covered by any of the clauses (a) to (j) of Section 39 of G&W Act. The -: 17 :- G.No. 218/06 authorities relied upon by Ld. Counsel for petitioner are clearly distinguishable from the facts and circumstances of the present case. They do not support the case of petitioner. The authority mentioned at Sr. no. 1 above is in respect of provisions of Income Tax Act and has been held that the provisions of the said Act are exhaustive of the matters dealt with therein. The said authority rather goes to show that the relief of declaration of adoption deed as null & void, can be granted by the Court within the scope and ambit of Hindu Adoption and Maintenance Act which is also a complete code in itself and not by this Court while acting within the scope and ambit of Guardians and Wards Act or Hindu Minority and Guardianship Act. In authority mentioned at Sr. no. 2, 3 above, it has been held that whenever substantive power is conferred upon a Court or Tribunal, all incidental and ancillary powers for effective exercise of substantive power have to be conferred. The authorities mentioned at -: 18 :- G.No. 218/06 Sr. no. 4 to 7 above, are altogether on different facts and have been rendered in entirely different facts and circumstances of those matters.
In the light of aforesaid discussion, this Court is of the view that the present petition merits rejection and this Court has got no power to declare the adoption deed dated 28.04.2006 as null & void. Consequently, the application under consideration is hereby allowed.
In view of the fact that application U/o 7 rule 11 CPC has been allowed, the other application U/o 14 rule 5 CPC of respondent no. 3 has become meaningless and is disposed of accordingly. The petition is rejected U/o 7 rule 11 CPC. Interim order, if any, stands vacated. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court. (Vidya Prakash)
Dt. 04.05.2009 Guardianship Judge
Delhi
-: 19 :- G.No. 218/06
G No. 218/06
02.05.2009
Present:- None for the parties.
Orders not ready. Put up on 04.05.2009 for
orders.
(Vidya Prakash)
GJ/Delhi
04.05.2009
Present:- Proxy Counsel for petitioner.
None for respondents.
Vide separate order of the even date, the application U/o 7 rule 11 CPC of respondent no. 3 has been allowed and the petition has been rejected. Interim order, if any, stands vacated. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Vidya Prakash) GJ/Delhi