Delhi District Court
Sh. Devender Kumar vs Sh. Kuldeep Kumar on 2 June, 2016
IN THE COURT OF CIVIL JUDGE10 (CENTRAL)/DELHI
SUIT NO. 131/13
PRESIDED BY SAMAR VISHAL (CIVIL JUDGE)
Unique ID No. 02401C0390682013
MEMO OF PARTIES
1. Sh. Devender Kumar
S/o. Sh. Late Sh. Prabhu Dayal
2. Smt. Sarita
W/o. Sh. Devender Kumar
Both Resident of:
3290/2728, Beadonpura, Karol Bah, New Delhi05
...........Plaintiffs
Versus
1. Sh. Kuldeep Kumar
S/o. Sh. Satpal
2. Smt. Vandana
W/o. Sh. Kuldeep Kumar
Both Residents of:
16/766H, Bapa Nagar,
Military Road, Karol Bagh, New Delhi05
.......Defendants
Date of institution of Suit: 06.08.2013
Date on which judgment was reserved: 18.05.2016
Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 1/7
Date of pronouncement of Judgment: 02.06.2016
SUIT FOR DECLARATION AND CANCELLATION OF ADOPTION DEED
EXECUTED ON 27.06.2013 AND MANDATORY INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiff for a decree of declaration of adoption deed as null and void and for injunction that the defendants be directed to hand over the custody of the child of the plaintiff in respect of whom the adoption deed was executed.
2. The plaintiff no.1 Sh. Devender and the plaintiff no. 2 Smt. Sarita and the defendants Sh. Kuldeep kumar and Smt. Vandana are close relatives of each other. They reside within a periphery of 1KM of each other and the defendants used to visit the house of the plaintiffs. Plaintiffs have two daughters, one daughter is 6 years old and the other was born on 04.03.2013 namely Nitara. The adoption of Nitara is in issue in this case. The defendants do not have any issue from their 10 year long marriage. The defendants have approached the plaintiff to give their daughter for adoption and promised that they will give natural love and affection to the child as their parents would have done. Plaintiffs agreed to adoption and they now alleged that this consent was obtained by fraud.
3. on 27.06.2013, an adoption deed was executed and registered with the Sub Registrar. Later on, the mind of the plaintiffs changed due to certain incidents as alleged by them and they wants that this adoption deed be declared null and void and Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 2/7 there daughter ( Nitara) be returned to them by the defendants. Plaintiffs have also sent a legal notice to the defendants dated 12.07.2013 canceling the adoption deed.
4. The defendants by filing a joint written statement alleged that the plaintiff no. 1 is a habitual drinker and that there was no fraud upon the plaintiffs to give their child in adoption to the defendants. The adoption deed was regularly executed and the child was given without playing any fraud upon the plaintiffs.
5. These are the overall pleadings of both the parties. On the basis of the pleadings the following issues were framed:
i. Whether there is no cause of action to file the present suit against the defendants? OPD ii. Whether the plaintiffs are entitled to a decree of declaration as sought in the prayer clause of the plaint? OPP iii. Whether the plaintiffs are entitled to a decree of mandatory injunction as sought in the prayer clause of the plaint? OPP iv. Relief.
6. In order to prove its case, the plaintiff has examined three witnesses. Plaintiff has examined himself as PW1 namely Sh. Devender Kumar, his wife namely Smt. Sarita as PW2 and Sh. Hemender Kumar as PW3. Defendant has also examined two witnesses. Defendant has examined himself as DW1 namely Sh. Kuldeep Kumar and his wife as DW2 namely Smt. Vandana.
ISSUE Nos. 1, 2 & 3
Whether there is no cause of action to file the present suit against the Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 3/7 defendants? OPD And Whether the plaintiffs are entitled to a decree of declaration as sought in the prayer clause of the plaint? OPP And Whether the plaintiffs are entitled to a decree of mandatory injunction as sought in the prayer clause of the plaint? OPP
7. Since all these issues will require a similar appreciation of facts and evidence thereto, these issues are decided simultaneously.
8. Most of the facts of this case are not in dispute. It is not in dispute that the plaintiffs have given their daughter Nitara to the defendants in adoption. The date of adoption as per adoption deed is 22.05.2013. Although, the date of adoption in plaint is mentioned in 27.06.2013. It is not in dispute that the plaintiffs have two daughters, out of which one Nitara was given in adoption. The defendants do not had any issue after their long marriage that's why plaintiff's gave the daughter to the defendants in adoption.
9. Law of Adoption is now governed by "The Hindu Adoptions and Maintenance Act, 1956" and is now a statutory law.
10. Section 11 of this Act provides the conditions of valid adoption. This section reads as If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 4/7 If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twentyone years older than the person to be adoptive If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty one years older than the person to be adopted The same child may not be adopted simultaneously by two or more persons; The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family or its adoption:
11. This section provides conditions necessary for valid adoption. None of the conditions essential for the valid adoption are purported to have been violated by the defendants.
12. The main thrust of plaintiff is on the fact that the consent of the plaintiff's to adoption was taken by fraud but, the plaintiff is neither able to plead that what was the actual fraud committed by the defendant nor able to prove the existence of such fraud despite examination of three witnesses. The adoption deed in the present case is a registered adoption deed. Parties appeared before the SubRegistrar and therefore there is a presumption of genuineness in favour of the registered adoption deed not Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 5/7 only in general law but also in Section 16 of "Hindu Adoption and Maintenance Act, 1956". which reads as under Presumption as to registered documents relating to adoption: Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person given and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
13. The old ceremony of Datta Homam is now not essential to the valid adoption in view of the Section 11 and the only requirement under the law is that the child to be adopted must be actually given and taken in adoption by the parents or guardians concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. The conduct of the parties clearly shows such adoption in this case. The effects of adoption are provided in section 12 as Section 12 "Hindu Adoptions and Maintenance Act, 1956"
Effects of Adoption: An adopted child shall be deemed to be the child of his or 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 or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 6/7 The adopted child shall not divest any person of any estate which vested in him or her before the adoption. According to this section and adopted child is a child of her adopted parents for all purposes and his ties from his previous family immediately snaps on adoption.
14. It is argued Ld. Counsel for the defendants that plaintiffs do not have any cause of action to file the present suit against the defendant. The present adoption seems to be actually made by the plaintiffs to the defendants. The adoption of child was just after 2 months after her birth. Child is now with the defendants for more than 3 years and she has accepted the defendants as a parents and will not recognize the plaintiffs as a parents and will not be able to live with them. Moreover, there is no allegations on the part of the defendants either that they ill treated the child or do not take care of her. On the contrary the photographs shown by the defendants show the love and affection which they have upon the child. The defendants have taken the child in adoption as they do not have children from their marriage.
15. Therefore, on the basis of the aforesaid discussion, the three issues mentioned above are decided in favour of the defendant and against the plaintiff. I have no hesitation to say that the plaintiffs have no cause of action to file the present case.
The plaintiffs are not entitled to a decree of declaration and for the custody of the child Nitara. The suit is accordingly dismissed.
Announced in the open court SAMAR VISHAL
On 02.06.2016 Civil Judge - 10 (Central)
Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 7/7
02.06.2016 Suit no. 131/13
Present: None.
Vide separate judgment of even date, the suit of the plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
SAMAR VISHAL Civil Judge10(Central)/THC 02.06.2016/Delhi Suit No.131/13 Devender Kumar & Anr. Vs. Kuldeep Kumar & Anr. 8/7