Delhi District Court
Shri Prem Singh Sharma vs Smt. Mamta Sharma on 27 April, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS: DELHI
G.P. No. 01/11.
UID No. 02401C0446622003.
Shri Prem Singh Sharma
S/o. Late Sh. Banarsi Dass Sharma
R/o. 39A/1, Kilokari Village
Opposite Maharani Bagh
New Delhi-110 014.
........... Petitioner
Versus
1. Smt. Mamta Sharma
W/o. Late Sh. Pradeep Sharma
D/o. Sh. Om Parkash Sharma
R/o. B-141, Jawahar Nagar
B Block, Khanpur
Delhi-110 062.
2. Smt. Suman
W/o. Sh. Yogesh Pathak.
3. Shri Yogesh Pathak
S/o. Sh. Bishamber Dayal Pathak
Both R/o. Badtalla Yaadgar
Saharanpur, U.P.
......... Respondents
Date of institution of petition : 26.04.2003.
Date of reserving for judgment : 10.04.2013.
Date of judgment : 27.04.2013.
JUDGMENT
1. This is petition filed under Section 7, 8, 9, 10 and 25 of Guardian and GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 1 Wards Act for appointment of guardian and the custody of the child.
2. Brief facts of the case are :
a) Initially the petition was filed by petitioners no. 1 and 2 who are grandfather and grand mother of Master Kakul with a prayer to appoint his guardian.
b) Respondent no. 1 was married to Sh. Pardeep Sharma, son of petitioners on 04/12/1997 at Delhi according to Hindu Rites and Ceremonies. Out of the said wedlock a male child was born to the son of the petitioner and respondent namely Kakul on 24/03/1999.
c) Son of the petitioner Sh. Pardeep Sharma died in an accident on 13/01/1999 and after his death respondent no. 1 stay with the petitioners at petitioner's house. The petitioner used to take care of all sorts of respondent no. 1 and the child. The petitioners and respondent no. 1 jointly filed claim before MACT, Delhi. A award was passed in favour of the petitioners and respondent no. 1 along with the child.
d) After receiving the amount the respondent left the matrimonial house and started living separately with Master Kakul at B-141, Jawahar Nagar, Khan Pur, Delhi at the residence of her parents. She also took all her stridhan and dowry articles in an amicable settlement.
e) Thereafter, the petitioners tried on several occasion to meet their grant child namely Kakul but the respondent no. 1 and her parents never allowed.
f) The petitioner have come to know that the respondent has married again and is living with her second husband at Delhi. Out of the second marriage, she gave birth to another child from second husband and the second son is living with the respondent. The son was born to respondent no. 1 at Khanpur. After marriage, respondent no. 1 left master Kakul with her parents and thereafter the child's GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 2 custody was given to respondent no. 2 who is sister of respondent no.
1 and presently the child is with respondent no. 2 who is presently at Saharnpur, with her husband. Seeing this behaviour of the respondent, the petitioner approached the respondent and requested to hand over the custody of child but she refused.
g) Respondent no. 1 send child master Kakul to her sister i.e. respondent no. 2 and presently the child Master Kakul is living with her mausi i.e. respondent no. 2. The welfare of the child is not safe with respondent no. 2. Respondent no. 2 herself is not well off and cannot brought up the child in a proper manner. Respondent no. 2 is married and residing with her husband at having her own child. Respondent no. 2 and her husband hardly manage their family expenses with their meagure family income.
h) Petitioner no. 1 is a transporter and is carrying on his business at Delhi and petitioners no. 1 and 2 are the income tax assessee. Both the petitioners have sufficient means of income. They are having no liability except the child. It is further stated that plaintiffs have two sons other than the husband of the respondent no. 1 who died in accident and both of them are well settled and are committed to support the petitioners for betterment of the child Master Kakul.
i) Petitioners are interested in proper up bringing of the minor child Kakul and are able to give better education to the child.
j) At the time of filing of the petition Master Kakul required proper welfare and education. The relationship and affection of the grandfather with grandson is something and can be favourably assumed. Thus, the present petition is filed.
3. Written statement filed by respondent no. 1 and 2 wherein it is denied that the petitioners are grand parents of Master Kakul as the child was already taken by valid adoption after conducting necessary ceremonies GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 3 by adoption deed dated 24/05/99 duly registered with the concerned authorities at Saharanpur, U.P. It is further stated that the actual date of birth of Master Kakul is 23/03/99 and the ordinary residence is at Saharanpur (U.P.). The child Master Kakul was taken in adoption by Sh. Yogesh Pathak and Smt. Suman Pathak and the petitioner has no concern with the child. It is further stated that respondent no. 1 has given the child to Sh. Yogesh Pathak with the consent of his wife Smt. Suman Pathak i.e. respondent no. 2 who is sister of respondent no. 1. It is further stated that the child was adopted on 24/05/99 prior to second marriage of respondent no. 1 which was solemnized on 26/12/2002. It is further stated that Master Kakul was born on 23/03/1999 at Ahuja Hospital, Khanpur, New Delhi. It is further stated that respondent no. 1 was kicked out from her matrimonial home by the petitioners and she was left at the main gate of Sainik Farms on 14/02/1999 in pregnant condition. It is further stated that the present petition has been filed just to harass with the intention to take money of Master Kakul which was awarded by the concerned court in the claim petition. It is further stated that the petitioners are greedy persons and have no love and affection with the child. It is further stated that Sh. Yogesh Pathak has two big houses at Saharanpur over a plot of 250 sq. yds, one big shop and he is also doing the business of property dealing and having two cars, three scooters and three motorcycles and earning handsome amount. It is objected that the petition is not verified as per provisions of law or the same is not supported with the affidavit.
4. Replication filed by the petitioner wherein the averments made in the written statement are denied and the contents of the petition are re- iterated and affirmed. It is further submitted that all the respondents have falsely and illegally manipulated alleged adoption deed dated GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 4 24/05/1999 despite the fact that respondent no. 1 who is natural mother of the minor son Master Kakul admitted in application on 12/04/2001 moved in the court of Sh. J. R. Aryan, MACT for release of the cheque on account of compensation due to the accidental death of Sh. Pradeep Sharma, son of the petitioners and deceased father of Master Kakul that she is the mother of Master Kakul and wanted to receive his cheque. It is further submitted that respondent no. 1 also admitted in application dated 24/04/2001 moved before the said court in para 3 that her address is B-141, Jawahar Park, Khanpur, New Delhi and she was residing with her son i.e. Master Kakul.
5. During the pendency of the petition, the respondents moved an application under Order 6 Rule 17 of CPC to amend the written statement. My ld predecessor by order dated 22/04/2009 dismissed the said application and not allowed to amend the written statement. The said order has not been challenged by either of the parties to the petition and thus attains finality.
6. My ld predecessor by order dated 08/08/2005 framed following issues :
"(i) Whether the minor child Master Kakul was validly taken in adoption by respondents no. 2 and 3 as alleged in the written statement and if so its effect on the maintainability of the present petition? OPR.
(ii) Whether the petitioner is entitled to have the custody of minor child Kakul ? OPP.
(iii) Relief."
7. My ld predecessor by order dated 04/07/05 deleted the name of petitioner no. 2 from the array of the parties as it was reported that she expired on 25/06/2005. Amended memo of parties was filed on 08/08/2005.
8. To prove his case, the petitioner examined himself as PW1 and tendered his evidence by way of affidavit Ex. P1. He was cross-GP No. 01/11
Prem Singh Sharma Vs. Smt. Mamta Sharma Page 5 examined by ld counsel for the respondent. He further examined LDC, Record Room (Sessions), Patiala House Courts, New Delhi and thereafter by separate statement ld counsel for the petitioner closed PE. In defendant respondent no. 1 examined herself as RW1 and tendered her evidence by way of affidavit Ex. R1. She was cross-
examined by ld counsel for the petitioner. Respondent no. 2 examined herself as RW2 and tendered her evidence by way of affidavit Ex. R2. Respondent no. 3 examined himself as RW3 and tendered his evidence by way of affidavit Ex. R3. Respondents further examined Sh. Ajay Sharma as RW4 and tendered his evidence by way of affidavit Ex. R4. Sh. Ashok Gupta was examined as RW5 who tendered his evidence by way of affidavit Ex. R5. Sh. Om Prakash was examined as RW6 who tendered his evidence by way of affidavit Ex. R6. Registration Clerk from Sub Registrar Office-I, Civil Court, Saharanpur, was examined as RW7. Sh. Sanjay Pal Singh was examined as RW8 who tendered his evidence by way of affidavit Ex. R8. Thereafter, by separate statement ld counsel for the respondent closed RE.
9. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also gone through the written arguments submitted on behalf of the petitioner as well as respondent. I have also heard Sh. Pawan Kumar Jain, counsel for the petitioner and Sh. Ravinder Aggarwal, counsel for the respondent. My issuewise findings are :
10. Issues No. 1 :
Whether the minor child Master Kakul was validly taken in adoption by respondents no. 2 and 3 as alleged in the written statement and if so its effect on the maintainability of the present petition? OPR. Onus to prove this issue was upon the respondent. This is the GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 6 case of respondent no. 1 that Master Kakul was given in valid adoption to respondents no. 2 and 3. All respondents witnesses have stated in their deposition as well as in their affidavits about the adoption of Master Kakul. Respondent no. 1 in Ex. R1 stated as such. This affidavit is similar to the averments made in the written statement of Respondent no. 1. In para 3, the child has been referred as Master Kakul and in subsequent paragraphs also the name of child is referred as Master Kakul. She relied upon Ex. RW1/4 which is adoption deed. Document is perused. This is the certified copy a adoption deed dated 24/05/99. In this adoption deed a child whose name is referred as Jyotish. However, nowhere in this affidavit the name has been referred as Master Jyotish @ Kakul of the child. Page 1 of this document does not bear photograph of either of the parties of person. This document was filed on 07/09/2006. On the record another document which is adoption deed is available of the same date for the same person. However, at first page there are imprints of photographs of three persons. Now if this document is photocopy of the same document then why there was no photograph upon first page of Ex. RW1/4. Moreover, the document is carefully perused. In this document, name of the child nowhere referred as Master Kakul. Moreover, at the time of proving this document objections were raised on behalf of the petitioner. During arguments it is contended by ld counsel for the petitioner that original of this document was not brought on the record at the time of evidence of RW1. It has not been explained why the original of Ex. RW1/4 was not filed or brought during evidence. Moreover, it is also not explained when Ex. RW1/4 have imprints of photograph of three persons then how the similar available on record is not having photographs of three persons. This fact has not been explained. It appears that the respondent during evidence not filed GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 7 original adoption deed as she was apprehending to face such questions and was not able to answer such questions during cross- examination. Moreover, the conduct of respondent no. 1 is again suspicious when this court perused Ex. RW1/DC. This is the certified copy of an application filed before the court of Sh. J. R. Aryan, MACT, Delhi. It bears the date of 12/04/2001. When RW1 disclosed that she was mother of Master Kakul and wanted to receive his cheque. Similarly Ex. RW1/DD which is the certified copy of receipt executed by her before the court of MACT, New Delhi wherein she had received a cheque on behalf of Master Kakul and this document was also executed on the same date i.e. 12/04/2011. Ex. FW1/DB is the application moved on 12/04/2001 which bears the signatures of respondent no. 1 i.e. RW1 for release of the cheques. Ex. RW1/DA is photocopy of receipt wherein RW1 received the cheques of Master Kakul of Rs. 1,10,000/-. It bears the date of 12/12/2001. Thus, upto 12/12/2001 respondent no. 1 had represented before different courts that she was the mother of Master Kakul. Moreover, nowhere it has been mentioned by respondent no. 1 that Master Kakul was having any other name i.e. Master Jyotish or else. Thus, Ex. RW1/4 has not been proved in accordance with the law in the light of the evidence brought on the record inasmuch as Ex. RW1/4 itself creates suspicion as nowhere it contained the name of child as Master Kakul. She has admitted that she has received the compensation of Rs. 60,000/- awarded in favour of Master Kakul by cheque from the MACT court and the said amount is lying deposited in the fixed deposit and she is the nominee of the said FD. It is apparent that she was made nominee in the said FD only for the reason that she was next friend and natural mother of the child Master Kakul. If the child was given in adoption then definitely she would have informed to the court and the court GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 8 would have passed the order accordingly. She has further admitted that at the final decision, total amount of compensation of Rs. 3,10,000/- besides interest was awarded and a sum of Rs. 1,10,000/- was received by her on behalf of Kakul and the said amount was lying deposited in FD. She has further stated that she did not remember who is nominee in the said FDR. However, the said FD is in her possession. Here, she has not disclosed in what capacity she kept that FD. According to her the child has been given in adoption then definitely she lost all the capacity to have possession of the said FD. She admitted that in the title of the claim petition she has mentioned her address as 39/A/1, Kilokari, opposite Maharani Bagh, New Delhi, which is the address of her in-laws. She has admitted that she did not move any application in MACT claim petition which was filed on 19/02/99 and was finally decided on 14/10/2001 regarding the fact that she gave Master Kakul in adoption on 24/05/2001. She has further admitted that till the time she received the final amount of compensation on behalf of Master Kakul she did not inform the court about the adoption of the child. In further cross examination, RW1 stated that she had brought photocopies of FD issued in favour of Master Kakul which are Ex. RW1/P1 and RW1/P2. Both documents are perused. Ex. RW1/P1 was issued on 14/12/2001 wherein respondent no. 1 was shown as guardian of Master Kakul. Similarly, Ex. RW1/P2 was issued on 27/04/2001 and respondent no. 1 was shown as guardian of Master Kakul. She has admitted that at the time of her marriage, the petitioner was doing transport business under the name and style of M/s. Sharma Roadlines, Okhla, New Delhi. The written statement filed by the respondents perused. In para 14 of the written statement, it is denied by respondent no. 1 that petitioner is a transporter and carrying on business in Delhi. Thus, this court here GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 9 observes that respondent no. 1 has filed a false written statement and also filed false affidavit in support of written statement filed in this case. She was well aware that at the time of her marriage, the petitioner was doing transport business. But she has concealed this fact from the court inasmuch as she projected a false denial to the averments made in the plaint. In further cross-examination she has admitted that there was one car besides immovable properties in village Kilokari. In para 14 of the written statement, the respondent has denied the fact that the petitioner is well to do and has sufficient means of income. Again the respondent has projected a false denial and in supporting affidavit she has made false deposition. She has further stated that she did not know the petitioner was having labour contract business in Godrej and Boyce Manufacturing Company Limited, Okhla, New Delhi. She further admits that respondent no. 3 is a pandit in a temple in Saharanpur and further stated that he is a astrologist. A suggestion was given that Master Kakul was not given in adoption by her to other respondents and he is living in her parental home at Khanpur and the suggestion is denied. She has admitted that she did not file any document in the court to show that the petitioner has taken loan against the tempoes as contended by her in para 14 of the written statement. Thus, the respondent is not able to prove the contention regarding the loan upon the tempoes as contended by her in the written statement. She has admitted that Ex. RW1/4 was not obtained by her personally. It was obtained by respondent no. 3 Yogesh Pathak. Thus, Ex. RW1/4 i.e. adoption deed has not been proved in accordance with the law. A suggestion was given that Ex. RW1/4 is a forged and fabricated document and the suggestion was denied. Therefore, in all circumstances, the adoption deed has not been proved before this court by the respondents in accordance with the law. RW7 is the GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 10 witness to prove certified copy i.e. Ex. RW1/4. During his cross-
examination, a suggestion was given that Ex. RW1/4 is not the certified copy of the original adoption deed brought by him and he denied the suggestion. He has admitted that there are no photographs of the concerned parties affixed on the original adoption deed which he was brought. Now the question arises if there are no photographs in the document brought by RW7 then how the respondent is claiming that the original adoption deed containing photographs thereupon. He has admitted that Ex. RW7/PX1 is not the certified copy of the original which he was brought. He has admitted that the same was the copy of the copy of adoption deed which was supplied to the concerned parties. He has further admitted that he has not seen the original of Ex. RW7/PX1. Thus, in view of the discussion made herein above, the respondent is not able to prove the adoption deed in accordance with the law.
11. RW2 in Ex. R2 has deposed similar facts as averred by her in the written statement filed by her. In cross-examination, she has stated that she did not know if the minor son is called with the name Master Kakul since his birth. She has admitted that her husband Sh. Yogesh Pathak is a pandit and he performs puja, mahurat and marriage. She has voluntarily stated that he is doing business of property dealer as well as precious navrattan stone. She was not able to produce any document that her husband was doing the business of property dealer or the business of precious navrattan stone. She has stated that no invitation card of adoption ceremony of giving and taking of the minor child was printed. She has sated that Prem Singh Sharma i.e. petitioner was the grand father of Master Kakul. Affidavit of RW3 is similar to the affidavit of RW2. RW3 admitted in cross-examination that he is pandit by profession, astrologist, palmist and property dealer.
GP No. 01/11Prem Singh Sharma Vs. Smt. Mamta Sharma Page 11 He has admitted that he has not filed any document to show that he is the registered owner of any car, scooter, motorcycle, house, shop, sweet shop or property dealing business. Here the court observes one more important fact that if RW3 is doing the profession of astrologer, palmist and pandit then it is very difficult for RW3 that he would be able to do property dealing business also. Both are different streams and in all probabilities a person cannot do both these business simultaneously. The profession of pandit, astrologer and palmist requires thorough and regular study. An astrologer and pandit or a palmist is required to refer daily panchang as well as he is to devote the time upon the puja, arti and any other ceremony to be performed by him. It requires devotion of a person for full time. Simultaneously, a business of property dealer is also required a devotion of full time. The property dealer has to attend the calls of his customer. He has to locate the prospective buyers, sellers, properties so that he could earn out of that business. A property dealer to satisfy his customers has to visit different properties frequently so that he could persuade his customers to enter into transaction for a particular property. Thus, it requires lot of time of a person. He also makes survey in his area to ascertain the availability of the properties of which transaction would take place. It is another important factor that the profession of pandit is also a time bound profession. A pandit has to do arti in the temple twice a day as per schedule time. Moreover, a pandit has to reach at the venue where ceremonies have to be performed at appropriate time so that the mahurat i.e. auspicious time should not passed or not attended. Thus, pandit has to be very much cautious for the time for all ceremonies such as wedding or other rituals. Therefore, it is very difficult for a person to do both the professions i.e. the profession of a pandit and profession of property dealer simultaneously. He has GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 12 admitted that he has not produced any document regarding his income. A suggestion was given that Kakul was never given or taken in adoption or that he was living with his Nana and Nani and the suggestion was denied. He has admitted that petitioner was doing business of transport. Again written statement is perused. In para 14 of written statement on merits RW3 denied this fact. Thus, RW3 has wrongly denied this fact in written statement and also falsely verified the written statement. He has further stated that no invitation card of ceremony of giving and taking in adoption of minor child was printed. Photographs which are Mark A, B and C are stated by RW1 as the photographs of adoption ceremony. However, those documents have not been proved in accordance with the law. No steps have been taken by the respondent to prove those photographs in accordance with the law. Thus, those photographs cannot be looked into and accordingly neither RW1 nor RW2 nor RW3 are able to prove adoption ceremony. Moreover, neither of the witnesses of the respondent has stated the date on which the adoption ceremony took place. The onus was upon the respondent to prove the fact of adoption which also includes the adoption ceremony but when none of the witnesses stated about the date of adoption ceremony then the respondents are not able to prove the adoption ceremony nor it is stated that where the said adoption ceremony took place. The petitioner has relied upon Mrs. Urmila Devi and another Vs. Himanta Kumar Mohanta alias Hemanta Mohanta & ors. Orissa High Court AHO No. 62 of 1989 decided on 10/05/1993 where in para 13 it was observed :
"13. ......There has been no narration of the ceremony or even to the usual feast following it. It is to be remembered that the evidence of adoption has to be scrutinised since it results in changing the course of succession. The significant features discussed by us earlier and the scanning of evidence of D.Ws.3 and 5 GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 13 as made by us, aforesaid, unequivocally indicate that the defendant No. 4 has utterly failed to establish that he was given in adoption by his natural father and was taken in adoption by Sankar and Sasi and the conclusion of the learned single Judge on that score is wholly unsustainable in law. We accordingly set aside the said finding of the learned single Judge and hold that defendant No. 4 had not been given in adoption by his natural father and had not been taken in adoption by Sankar and Sasi."
Thus, the observations made in the referred judgment are applicable to the facts of the present case inasmuch as the adoption ceremony has not been proved by any of the respondents.
12. During cross-examination PW1 stated that respondent no. 1 lived with him till 12/12/2001 and when the amount of compensation was allowed then she left the home. A suggestion was given to PW1 by the respondents that he kicked out respondent no. 1 from his house so that she and her child Master Kakul could not claim any share in his property and the suggestion was denied. This court observed that this suggestion is inconsistent to the pleadings of the parties inasmuch as if the petitioner would have been afraid of giving share to the child in his property then definitely he would not file this petition before this court. In those circumstances, he would remain satisfied to the effect that his purpose was achieved. But the filing of the present case shows that the petitioner was not having any such intention and he was having affection with the child and never afraid to bear the expenses of the child and to give the share out of his property. He has further stated that he has ration card to show that respondent no. 1 lived with her till 12/12/2001. This piece of evidence has not been challenged by the respondents in further cross-examination. A suggestion was given that respondent no. 3 has number of properties and cars at Saharnpur and the suggestion was denied. This court here GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 14 observes that during the entire evidence led by the respondent, no document of property or car of respondent no. 3 has been brought on the record. It is admitted case that respondent no. 1 remarried on 26/12/2002. A further suggestion was given that the plaintiff has filed the present petition only to grab the amount of compensation as was allowed by the court of MACT to Master Kakul and the suggestion was denied. This court makes further observation to the effect that the petitioner is contesting this case for the last 10 years. Throughout it is the case of the petitioner that he was ready to bear all the expenses of the child. Definitely all such expenditure would have been at the higher side than the compensation received for Master Kakul from the court of MACT. Therefore, this defence of the respondent is again inconsistent with the facts came before this court.
13. In view of the entire evidence discussed herein above, this court is of the considered opinion that adoption deed has not been proved in accordance with law inasmuch as, respondent no. 1 herself represented before different courts till December, 2001 that she was the mother of Master Kakul. Moreover, no valid ceremony for adoption has been proved as neither date of ceremony nor the place of ceremony has been disclosed by any of the witness of the respondents. Moreover, respondent no. 1 has also made false pleadings before this court as observed herein above by this court. This court further observed that respondent no. 1 in order to defeat the claim of the petitioner also played fraud before this court inasmuch as she brought an adoption deed allegedly executed in the year 1999 but before different courts she has already represented that she is the mother of Master Kakul. This court has to observe that if respondent no. 1 was given through valid adoption then obviously she would inform to the court of MACT about this fact immediately being a law GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 15 abiding citizen. Moreover, last but not least, till date no adoption deed has been brought on record for adoption of Master Kakul whose name was represented by respondent no. 1 till December, 2001 before different courts as Master Kakul. During arguments, it is the case of the respondents that Master Kakul is in fact Master Jyotish. However, no document has been brought on the record that change of name of Master Kakul has ever taken place in accordance with the law. During arguments, ld counsel for the respondents relied upon Rabindra Nath Mukherjee Vs. Abinash Chandra Chatterjee AIR 1972 Calcutta 143 (V 59 C 24), Mst. Aisha and another Vs. Bashir Ahamad Haji AIR 1987 Jammu and Kashmir 68, Anima Gupta Vs. Tarun Kumar Gupta AIR 2003 Allahabad 76, Sanjeev Majoo Vs. Ruchi Majoo 167 (2010) Delhi Law Times 714, Dr. Vinay Samuel Arawattigi Vs. Principal Judge, Family Court, Kanpur Nagar AIR 2007 Allahabad 13, Abraham G. Karimpanal and others Vs. Nil AIR 2004 Karnataka 321 and Sumeet Vs. Anupam Gupta 170 (2010) Delhi Law Times
361. However, all such judgments are not applicable to the facts of the present case inasmuch as in this case the respondents have not been able to prove the valid adoption. Moreover, the petitioner in the petition gave the address of respondents no. 1 and 2 of Khanpur, Delhi whereupon both the respondents were served and it is also stated in para 19 of the petition that the child since the date of birth till handing over the custody to the respondent also resided at Delhi and the ordinary residence of the child is at Delhi. In written statement no such objection regarding the territorial jurisdiction was taken and only evasive denial was given in para 19 of the written statement. It was the duty of the respondents to dispute the jurisdiction at the stage of filing of the written statement by disclosing the fact about the ordinary residence of the child at that time but such specific objection was not GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 16 taken at that stage and, therefore, the judgments as relied upon by the respondents are not applicable to the facts of the present case. The rival side also relied upon Sital Das Vs. Sant Ram AIR 1954 SC 606, P. G. D'Ombrain and others Vs. Collector of Kamrup Gauhati AIR 1980 Gauhati 55, Sanatan Mohanty and others Vs. Baidhar Rout and others AIR 1986 Orissa 66, Bhaskar Sahu Vs. Anama Swara and others AIR 1987 Orissa 138, Hari Singh Vs. Shish Ram and others AIR 2003 Punjab and Haryana 150, Smt. Dhanno Wd/o Balbir Singh and others Vs. Tuhi Ram (Died) son of Puran son of Raje and others AIR 1996 Punjab and Haryana 203. This court has already considered the law as cited in the judgment.
14. This court already observed that FDR in favour of Master Kakul, kept by respondent no. 1 as next friend and natural mother of the child Master Kakul. Thus, in my considered opinion respondent no. 1 has projected a false defence to the effect that Master Kakul was given in adoption to respondents no. 2 and 3 only to defeat the claim of the petitioner inasmuch as she has already before various courts had represented till December, 2001 that she was the mother of Master Kakul. In December, 2002 she got remarried and thereafter in April, 2003, the petitioner filed the present case due to the fact of remarriage of respondent no. 1. Thus, issue no. 1 is answered in favour of the petitioner and against the respondents.
15. Issue No. 2.
Whether the petitioner is entitled to have the custody of minor child Kakul ? OPP.
Onus to prove this issue is upon the petitioner. The petitioner has successfully proved that respondent no. 3 is only doing the business of pandit and astrologer. This court already observed that respondent no. 3 is not able to prove that he is having properties or having any car etc. GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 17 On the other hand, it is admitted case of respondent no. 1 during evidence that the petitioner is having a transport business. It is admitted case that the petitioner has immovable property in village Kilokari and having car also. Whereas, respondent no. 3 is simply a pandit in a temple and merely an astrologist. Pandit and astrologer are not performing any organized business or profession, whereas the business of a transporter is comparatively an organized business. A transporter has to provide service in an organized way and as per the set time and schedule whereas a pandit or astrologer are not having comparative certainty towards the income. To consult an astrologer is not a necessity for a person but to avail the services of a transporter is necessary for the businessman/general public. Therefore, financially the petitioner is at the more sound place than respondent no. 3. He has better means to provide all necessities of life to the child. He is at the better position to make arrangements of education and upbringing of the child. Moreover, it is admitted case of the parties that respondent no. 1 has already remarried. She is living with her husband who appeared before this court as RW4. It is also stated by RW1 in Ex. R1 that she is very well settled there. Therefore, it will not be in the welfare of the child if the custody of the child would be given to his mother. In those circumstances, the child has to live with his step father. However, on the other hand the petitioner is having more affection towards the child being his natural grandfather. This fact is very well evident from the fact that for the last 10 years he is contesting the case without any interest, for custody of the child. The defence taken by the respondents to impeach the interest of the petitioner is already demolished as observed by this court. It is the case of the respondent that the petitioner is having eye upon the FDR issued in favour of Master Kakul by the MACT court. This court already GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 18 observed that the amount of the FDR is not as such to be compared which the petitioner has to incur upon the welfare of the child as well as expenses incurred in a litigation which has already been fought for 10 years. Therefore, in my considered opinion, the welfare of the child is with the petitioner. However, the court has to further take into consideration that for the last 10 years, the child is living away form the petitioner. During arguments, it is informed by the parties that the child is in 9th class. Therefore, this court dispose of issue no. 2 with the direction that Master Kakul shall be entitled to live where he is already living up to the date when he will pass 10 th class or up to completion of age of 16 years, whichever is earlier with further condition that in summer vacations, Dussehra vacations, Diwali vacations and winter vacations, he will live with the petitioner. Till then the petitioner shall provide all the expenses of the child Master Kakul as the petitioner is being appointed Guardian of Master Kakul. He will pay Rs. 6,500/- per month by way of pay order/demand draft to the person under whose custody Master Kakul has to chose to live till the time this court has passed the direction in this judgment which shall be incurred upon the education and welfare of the child. The said person shall provide accounts of the amount to the petitioner. Till then the petitioner being Guardian, shall have visiting rights at the residence of the child Master Kakul four times in a month besides directions passed herein above to join the petitioner by the child Master Kakul during vacations. The traveling expenses to be incurred for joining Master Kakul with the petitioner shall be incurred by the petitioner only. None of the respondents shall interfere in the directions passed herein and in case any of the respondents interfere then the petitioner is at liberty to take assistance of the concerned police as well as concerned law enforcement agencies including the court. All the concerned police/law GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 19 enforcement agencies shall provide all the assistance to comply with the directions passed in this judgment. However, Master Kakul is also at liberty to make telephone calls to the petitioner or to attend his calls as per the convenience and time schedule for his studies. None of the respondents shall have right upon Master Kakul except directions passed herein this judgment.
16. Issue No. 3.
Relief.
In view of the observations made herein above, the petition of the petitioner is allowed in accordance with the observations and directions passed in this judgment. Parties have to comply with all such directions. There is no order of cost. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 27/04/2013. Additional District Judge-09 Central District, Tis Hazari Courts Delhi GP No. 01/11 Prem Singh Sharma Vs. Smt. Mamta Sharma Page 20 GP No. 1/11 27/04/2013 Present : None.
Vide separate judgment announced in the open court today, the petition of the petitioner is allowed in accordance with the observations and directions passed in the judgment. Parties have to comply with all such directions. There is no order of cost. File be consigned to record room.
(Jitendra Kumar Mishra)
Additional District Judge-09
Central District, Tis Hazari Courts
Delhi/27.04.2013
GP No. 01/11
Prem Singh Sharma Vs. Smt. Mamta Sharma Page 21