Delhi District Court
Jyoti vs . Shalu on 15 September, 2015
Jyoti Vs. Shalu
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE: SPECIAL JUDGE: CBI-01
NORTH-WEST: ROHINI COURTS: DELHI
CA No. 19/2015
ID No. 02404R0254822015
Smt. Jyoti
W/o Sh. Harish
D/o Sh. Sunder Lal
R/o B-792, Avantika,
Sector-1, Rohini,
Delhi.
..........Appellant
versus
Smt. Shalu
W/o Sh. Deepak
R/o H. No. 144, DDA Quarters
In front of Dilshad Garden
New Seemapuri
Delhi.
..........Respondent
Date of Institution : 13.07.2015
Date of judgment : 15.09.2015
Present : Sh. Krishan Kumar, Advocate, counsel for the
appellant
: Sh. Sunil Kumar, Advocate, counsel for the
respondent
CA No. 19/15 Page 1 of 7
Jyoti Vs. Shalu
O R D E R (ORAL) :-
1. This criminal appeal has been filed against the impugned order dated June 23, 2015 whereby the Court of learned Metropolitan Magistrate (Mahila Court), Rohini Courts, Delhi granted visitation right in favour of the respondent
2. Necessary facts in brief leading to filing the present criminal appeal are that appellant had filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 (in short Act) against her husband, in-laws including present respondent. Along with the application, appellant had also moved an application under Section 21 of the Act for the custody of her daughter named Baby Yashika on the ground that her husband had already left the matrimonial house and her minor daughter Baby Yashika is in the custody of her mother-in-law. It was further alleged that her husband had already solemnised marriage with a muslim female having six children. Accordingly, vide order dated April 06, 2015, learned Trial Court granted interim custody of minor child i.e. Baby Yashika in favour appellant till further order. In compliance of the said order, directions were issued to the Protection Officer on April 10, 2015 to handover the custody of child to the appellant after taking the custody of child from the matrimonial house of the appellant.
CA No. 19/15 Page 2 of 7Jyoti Vs. Shalu
3. When respondent came to know about the said order, respondent approached the High Court of Delhi for quashing of the order dated April 10, 2015 by filing a Crl. M.C. No. 2389 of 2015 on the grounds inter-alia that respondent is an adoptive mother of the child as the child was given in adoption to her on April 05, 2013. During the proceedings, Hon'ble High Court permitted the respondent to move an application for visitation right of the child before the learned Trial Court within a week's time and further directed the learned Trial Court, if any such application is moved, same shall be considered promptly. In compliance of the said order, respondent moved an application for seeking visitation right of the child.
4. Vide impugned order dated June 23, 2015, learned Trial Court permitted the respondent to meet the child on every Saturday except Second Saturday from 2 PM to 4 PM in the Court itself.
5. Aggrieved by impugned order, appellant filed the present criminal appeal.
6. Learned counsel appearing for the appellant assailed the impugned order on three grounds firstly that respondent was incapable of taking Baby Yashika in adoption because she had a daughter; secondly the alleged adoption deed is a forged and fabricated document; thirdly that the visitation right is not in the interest of the CA No. 19/15 Page 3 of 7 Jyoti Vs. Shalu child because appellant had also made certain allegations against the respondent in her application under Section 12 of the Act.
7. Per contra, said contentions are refuted by the counsel appearing for the respondent by sagaciously arguing that Baby Yashika was given in adoption on April 05, 2013 by the appellant and her husband by executing an adoption deed. It was further submitted that at that time, there was no daughter with the respondent and her husband, thus the contention that respondent was incapable to take Baby Yashika in adoption is without any substance. It is further submitted that the adoption deed bears the signature of appellant as well as her husband. The question of genuineness of the adoption deed cannot be ascertained in this appeal as it is a matter of investigation or trial. It is further argued that till date, appellant has not filed any suit seeking the said adoption deed as null and void. It is further argued that at the time of seeking custody of the child, appellant had not disclosed all relevant facts before the learned Trial Court as appellant failed to disclose that Baby Yashika was given in adoption vide adoption deed dated April 05, 2013. Even, appellant has also concealed relevant fact in the present criminal appeal that respondent was permitted by the Hon'ble High Court to move an application to seek visitation right. It is further argued that respondent got admitted the child in K.G. Class in New Creation Public School on March 20, 2015 and at that time the name of parents of Baby Yashika is mentioned as Shalu i.e. respondent and Deepak i.e. husband of CA No. 19/15 Page 4 of 7 Jyoti Vs. Shalu respondent.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. Perusal of the record reveals that at the time of seeking custody of the child, appellant had not disclosed that child was given in adoption to the respondent vide adoption deed dated April 05, 2013. No doubt, appellant denied the execution of the said adoption deed by alleging that it is a forged and fabricated document but this issue cannot be decided at this stage because it is matter of trial. Admittedly, till date, appellant has not filed any suit seeking declaration of the said adoption deed as null and void. Since, as per the adoption deed, respondent is an adoptive mother of the child, thus, she is an aggrieved person, hence she has every right to challenge the order dated April 06, 2015 and April 10, 2015. Moreover, respondent was permitted to move the application to seek visitation right by the Hon'ble High Court.
(i) Perusal of the appeal file reveals that appellant has also filed a photostate copy of admission form of Baby Yashika. As per the said form, Baby Yashika was got admitted in K.G. Class in New Creation Public School and in the said form, name of her mother is mentioned as Shalu and name of her father is mentioned as Deepak.CA No. 19/15 Page 5 of 7
Jyoti Vs. Shalu This further prima-facie corroborates the version of respondent that she had taken the Baby Yashika in adoption otherwise, there was no occasion for them to mention their name as parents of Baby Yashika.
10. Perusal of the impugned order reveals that learned Trial Court permitted the respondent to meet with child in the Court on June 06, 2015 and June 19, 2015 and learned Trial Court observed that Baby Yashika was not only comfortable but also appeared to be happy in the said meetings. In these circumstances, there is no substance in the contention that if respondent be permitted to meet with the child, it would not be in the interest of the child.
11. Though counsel appearing for the appellant argued that respondent was incapable to take the child in adoption because she had a daughter but this fact is refuted by the counsel appearing for the respondent by arguing that respondent had no daughter at the time of taking Baby Yashika in adoption. Rather, she was blessed with a daughter later on. On being asked, counsel appearing for the appellant expressed his inability to produce any document to show that respondent had any daughter at the time of taking Baby Yashika in adoption, accordingly, I do not find any substance in the said contention also.
12. In view of the aforesaid discussion, I am of the considered opinion that there is no merit in the present criminal appeal, CA No. 19/15 Page 6 of 7 Jyoti Vs. Shalu hence, I hereby dismiss the same.
13. Copy of order be sent to the learned Trial Court.
14. TCR be sent back.
15. Criminal appeal file be consigned to record room.
Announced in the open Court on this 15th day of September2015 (Pawan Kumar Jain) Special Judge, CBI-01, North-West Rohini Courts, Delhi/sm CA No. 19/15 Page 7 of 7