Bangalore District Court
Smt.Sunitha vs Sri.Samit R. Biswas on 15 March, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. G.L. LAKSHMINARAYANA, B.Com., LL.B.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 15th DAY OF MARCH 2016
OS.NO. 1314 OF 2013
PLAINTIFF/S 1.SMT.SUNITHA
D/O VISHNUPANTH
NAGAMMANAVAR,
AGED 43 YEARS.
R/AT No.4, BENAKA, 3RD CROSS, 3RD
MAIN, BENAGIRI NAGAR, BSK 3RD
STAGE, BANGALORE-85.
2.MASTER AUDRREN BISWAS S/O.
SAMIT BISWAS, AGED ABOUT 3
YEARS 9 MONTHS . SINCE MINOR,
REPRESENTED BY MOTHER AND
NEXT FRIEND TO SUNITHA D/O
VISHNUPANTH NAGAMMANAVAR.
AGEG ABOUT 43 YEARS.
(PLAINTIFF 1) R/AT No.4, BENAKA,
3RD CROSS, 3RD MAIN, BENAGIRI
NAGAR, BSK 3RD STAGE,
BANGALORE-85.
(By Sri. S.SUSHEELA, Adv.)
Versus
DEFENDANT/S
1. SRI.SAMIT R. BISWAS
S/O CHITRANJAN BISWAS
AGED ABOUT 44 YEARS
R/aT FD. 77, SECTOR III SALT LAKE
2
O.S.No.1314/2013
CITY, (CALCUTTA)KOLKATA 700106.
BIDHANAGAR SOUTH P.S
(WEST BENGAL STATE)
2.SMT.TANIA BISWAS W/O SAMIT
R.BISWAS AGED ABOUT 43 YEARS
R/AT FD 77, SECTOR III SALT LATE
CITY (CALCUTTA) KOLKATA 700106.
(Defendant No.1 & 2 - PAL Adv.)
Date of Institution of the 15.02.2013
suit
Nature of suit Suit for Declaration and
Injunction.
Date of commencement of 21.11.2015
recording of evidence.
Date on which judgment 15.03.2016
was pronounced.
Total Duration. Years Months Days
03 01 00
XXXVII ACCJ, BANGALORE
3
O.S.No.1314/2013
JUDGMENT
This is a suit for declaration and injunction filed by plaintiff against the defendants to cancel the adoption deed for permanent injunction.
2. The brief facts of the case are as follows.
The plaintiff No.1 is mother of plaintiff No.2. 1st defendant is the father of 2nd plaintiff. 1st defendant was married to 2nd defendant. That on 20.03.2009 second plaintiff was born to the first plaintiff. In view of forced physical relationship with first defendant. 1st defendant infront of god during August 2009 convinced and assured her that for all practical purposes she would be his wife and taking undue advantage her mental status innocence forced her to have physical relationship with her. The 1st defendant induced the 1st plaintiff to get pregnant and gave birth to child of his own. Accordingly the second plaintiff was born on 20.03.2009 to the plaintiff and 1st defendant. After she came to know that 1st defendant was married to 2nd defendant. Recently plaintiff was shocked to know that adoption deed 4 O.S.No.1314/2013 dated:02.05.2009. 1st plaintiff says that adoption deed is not executed. 2nd defendant is a biological father of 2nd plaintiff. 1st plaintiff has already initiated the proceedings against the defendants in G & WC 265/2012 and C.Misc.No.163/12 . That on 20.03.2009 when second plaintiff was born to the 1st plaintiff and 1st defendant at Bangalore during November 2012 defendants tried to illegally take away the minor 2nd plaintiff from the custody of the 1st plaintiff and discloses the adoption deed. Hence, she filed the suit.
3. On registration of the suit, the defendant were appeared before the court through their counsel and filed the written statement. In the written statement denied all the allegations as contended in the plaint. The suit is barred by law of limitation. Plaintiff No.2 is born as a result of surrogacy agreement with the plaintiff No.1. There is no cause of action for filing the suit amongst other grounds defendants prays for dismissal of the suit. 5
O.S.No.1314/2013
4. On the basis of the above pleadings my learned predecessor has framed the following ISSUES
1. Whether plaintiff No.1 prove that, defendant No.1 tricked has in the matrimony and forcibly had physical relation with her as contended in the plaint?
2. Whether the plaintiff No.1 further proves that, she has not voluntarily executed the adoption deed of plaintiff No.2 as contended in the plaint?
3. Whether suit is barred by limitation?
4. Whether the plaintiff is entitled for the relief sought for?
5. Whether defendants proves that plaintiff No.2 is born as a result of surrogacy agreement with plaintiff No.1?
6. What order or decree?
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O.S.No.1314/2013
5. The plaintiff No.1 got examined herself as PW 1 and marked documents at Ex.P1 to Ex. P9. Defendants neither adduced any oral evidence nor produced any document.
6. No argument addressed by the learned advocate for the plaintiff and defendants.
7. My finding on the above Issues are as follows:
Issue No.1to 5: In the Negative Issue No.6 : As per final order for the following.
REASONS
8. ISSUE No.1 to 5: It is the case of the plaintiff that plaintiff No.1 is mother of plaintiff No.2. 1st defendant is the father of 2nd plaintiff. 1st defendant was married to 2nd defendant. That on 20.03.2009 second plaintiff was born to the first plaintiff. In view of forced physical relationship with first defendant. 1st defendant infront of god during August 2009 convinced and assured her that for all practical purposes she would be his wife and taking undue advantage her mental status 7 O.S.No.1314/2013 innocence forced her to have physical relationship with her. The 1st defendant induced the 1st plaintiff to get pregnant and gave birth to child of his own. Accordingly the second plaintiff was born on 20.03.2009 to the plaintiff and 1st defendant. After she came to know that 1st defendant was married to 2nd defendant. Recently plaintiff was shocked to know that adoption deed dated:02.05.2009. 1st plaintiff says that adoption deed is not executed. 2nd defendant is a biological father of 2nd plaintiff. 1st plaintiff has already initiated the proceedings against the defendants in G & WC 265/2012 and C.Misc.No.163/12 . That on 20.03.2009 when second plaintiff was born to the 1st plaintiff and 1st defendant at Bangalore during November 2012 defendants tried to illegally take away the minor 2nd plaintiff from the custody of the 1st plaintiff and discloses the adoption deed. Defendants contention that they denied all the allegations as contended in the plaint. The suit is barred by law of limitation. Plaintiff No.2 is born as a result of surrogacy agreement with the plaintiff No.1. There is no cause of action for filing the suit.
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O.S.No.1314/2013
9. Pw 1 in her chief examination reiterated the facts as alleged in the plaint and got marked the documents Ex.P 1 to Ex.P 9. This witness has not tendered himself for cross-examination by the defendants and therefore, the evidence of PW 1 cannot be considered and it is liable to be discarded and hence, his evidence is no way helpful to the case of the plaintiff. Defendants neither adduced oral evidence nor produced any documents. Therefore plaintiff is not entitled for any relief. Plaintiff No.1 in the plaint pleadings contended that cause of action arose on 20.03.2009 and disclosed the adoption deed dated 02.05.2009. Suit filed on 15.02.2013 . After laps of 3 years the suit filed by the plaintiff is barred by time. Therefore under these circumstances plaintiff is not entitled for any claim. Hence, Issue No.1to 5 is answered in Negative.
10.ISSUE NO.6: In view of the discussion on the above issues I proceed to pass the following: 9
O.S.No.1314/2013 ORDER The suit of the plaintiff is dismissed. No order as to cost.
Draw decree accordingly. (Dictated to the Typist Online, corrected and then pronounced by me in open court, this the 15th DAY OF MARCH 2016) (G.L. LAKSHMINARAYANA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Smt. Sunitha Documents marked on behalf of the plaintiff/s:
Ex.P1 - Birth Certificate Ex.P2 - Adoption letter Ex.P3 - Copy of the Order Ex.P4 & P5 - Identity Card Ex.P6 & P7 - Photos Ex.P8 Copy of pass book Ex.P9 Copy of Miscellaneous Petition
List of witnesses examined on behalf of the Defendant/s:
NIL Documents marked on behalf of the Defendant/s: NIL XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE. 10
O.S.No.1314/2013 15.03.2016:
Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
The suit of the plaintiff is dismissed. No order as to cost.
Draw decree accordingly.
XXXVII ACCJ, (CCH-38)