Delhi District Court
Manisha Swarup vs Mukund Swarup on 10 December, 2012
IN THE COURT OF MS. ARCHANA BENIWAL
CIVIL JUDGE05 (SOUTH), SAKET COURTS, NEW DELHI
CS No. 588/10
Unique Case ID No. 02406C0432392010
Manisha Swarup
W/o Shri Mukund Swarup
R/o M13, Lajpat NagarIII,
New Delhi. ...PLAINTIFF
VERSUS
1. Mukund Swarup
S/o Shri D.K. Swarup
R/o H. No. 40C, BlockH,
Saket, New Delhi.
2. Shri Krishan Kumar Jhunjhun Wala
S/o Shri Shiv Karan Jhunjhun Wala
3. Smt. Divya Jhunjhun Wala
W/o Shri Krishan Kumar Jhunjhun Wala
Both r/o E28, Geetanjali Enclave,
New Delhi.
Also At:
703, Shivalaya Building,
Elliraj Salai, CINC Road,
Egmore600105. ...DEFENDANTS
Suit No. 588/10 Page 1 of 6
Date of institution : 13.01.2009
Date of filing of application : 18.03.2011
Date of reserving : 30.10.2012
Date of pronouncement : 10.12.2012
ORDER
1. By this order, I shall dispose off the application under Order 7 Rule 11 (a) and (d) of the CPC filed on behalf of the defendants.
2. Arguments on behalf of both the parties heard on the last date of hearing. The application and its reply along with the judgments relied upon by both the parties are perused.
3. It is submitted on behalf of the defendants that the present suit is not maintainable as the same is barred by Section 15 and 16 of the Hindu Adoption and Maintenance Act, 1956. It is submitted that the plaintiff had of her own will and consent given Master Aryaman in adoption to the defendants No.2 and 3 and the adoption deed was duly registered before the SubRegistrar, Delhi. Further, the present suit was filed by the plaintiff on 17.12.2008, i.e. after a period three years, and the same is barred by limitation. Even if the limitation period of three years for filing the present suit is calculated from 22.05.2008, i.e. the date on which the alleged legal notice dated stated to have been Suit No. 588/10 Page 2 of 6 sent by the plaintiff to the defendants, the said notice is also sent after a period of three years. Therefore, after a period of three years of the execution of adoption deed dated 11.01.2005, plaintiff has no cause of action to file the present suit.
4. In her reply to the present application the plaintiff has submitted that she never consented to the adoption of her son Aryaman by defendants No.2 and 3. The plaintiff never signed the adoption deed out of her own free will. The plaintiff was pressurized, threatened and forced to sign the adoption deed and no such adoption ceremony took place as mentioned in the adoption deed. The plaintiff never participated in any adoption ceremony. The plaintiff repeatedly demanded back her son from the defendants but on one day in November 2007 she was thrown out of her matrimonial home on the false allegation of adultery by the defendant No.1 and her parents as she demanded back her son. The adoption of child Aryaman is illegal and void and in the contravention of the rules and regulation of Hindu Adoption and Maintenance Act 1956 and the same is liable to be set aside. False adoption deed was got registered in the year 2005 and no such Godi adoption ceremony ever took place as mentioned in the adoption deed. It is further submitted that the petition has been filed Suit No. 588/10 Page 3 of 6 within period of limitation and very much maintainable.
5. Section 15 of Hindu Adoption and Maintenance Act states that no adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.
6. Section 16 of the Hindu Adoption and Maintenance Act states that 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 giving 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.
7. In the present suit, the plaintiff has not denied the adoption deed which has been duly registered but has assailed the circumstances under which the plaintiff was made to sign the alleged adoption deed. Hence, in view of the provisions of Section 16, the Court shall presume that the adoption has been made in compliance of the provisions of HAMA Act, 1956 unless and until the adoption deed is Suit No. 588/10 Page 4 of 6 disproved. The adoption can be proved or disproved only after the evidence in this regard has been led by the party who asserts that the same is not a valid adoption deed, in this case, the plaintiff. Hence, the Court does not find any merit in the aforesaid contention raised by the defendants.
8. As regards the period of limitation, Article 57 of the Schedule provided under the Limitation Act provides that to obtain a declaration that an alleged adoption is invalid, or never, in fact, took place, a period of three years is provided from the date when the alleged adoption becomes known to the plaintiff. The adoption deed in question was executed on 11.01.2005. The present suit was filed on 17.12.2008. Hence, the alleged adoption had been in the knowledge of the plaintiff on 11.01.2005 whereas the present suit was filed on 17.12.2008, which is several months beyond the limitation period of three years as provided under the Limitation Act.
9. In view of the aforesaid observations and the provisions of the Hindu Adoption and Maintenance Act, 1956 and the limitation period provided in Article 57 of the Schedule to the Limitation Act, the present suit is barred by limitation.
Suit No. 588/10 Page 5 of 6
10. Hence, the plaint in the present suit is rejected under the provisions of Order 7 Rule 11 (d) of CPC as the same is barred by the provisions of the Limitation Act.
11. Decree sheet be drawn up accordingly. File be consigned to record room.
Announced in open Court on 10.12.2012.
(Archana Beniwal) CJ05 (South), New Delhi 10.12.2012 Suit No. 588/10 Page 6 of 6