Bangalore District Court
Smt. Pushpavathi vs S on 15 December, 2016
Govt. of Karnataka
C.R.P.67]
TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
Form No.9 MAYOHALL UNIT, BANGALORE
(Civil)
Title sheet for
Judgment in Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
suits (R.P.91)
(Name of the Presiding Judge)
OS NO. 25002 / 2012
(CCH-22)
Plaintiff:-
Smt. Pushpavathi, W/o. Srinivas Murthy, aged 35 years, R/o.1080, 10th main,
RPC Layout, Hampinagar, Bengaluru.
(By M/s. Pramila Associates, Advocates)
V/s.
Defendant s:-
(1) Sri M. S. Sridhara Murthy, S/o. M.A. Srikanthaiah, aged 50 years, 198, 3rd
main, 7tth cross, I block, Ramakrishna Nagar, Mysore.
(2) Smt. Sudhamani W/o. M.S. Sridharamurrthy, aged 49 years, 198, 3rd main,
7tth cross, I block, Ramakrishna Nagar, Mysore.
(3) M.S. Srinivasamurthy, S/o. M.A. Srikanthaiah, aged 40 years, R/o. 1080,
10th main, R.P.C. Layout, Hampinagara, Bengaluru.
(D No.1 and 2 by Sri KCP, D No.3 by Sri M.L.Krishna.)
Date of Institution of the suit 2.1.2012
Nature of the (Suit or pro-note, suit for declaration and Declaration &
possession, suit for injunction, etc.) Injunction
Date of the commencement of recording of the
19.12.2014
Evidence.
Date on which the Judgment was pronounced. 15.12.2016
Year/s Month/s Day/s
Total duration 4 11 13
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2 O.S.No. 25002/2012
JUDGMENT
The plaintiff has filed this suit against Defendants seeking relief of (a) declaration to declare that the adoption deed dated 21.11.2002 is null and void and not binding on the plaintiff; (b) declaration to declare that the plaintiff being the natural mother is entitled to the custody of the minor child Lavanya; (c) To direct the 1st and 2nd Defendants to handover custody of the minor child Lavanya to the plaintiff; and (d) for permanent injunction restraining Defendants 1 to 3 or any person claiming through them from interfering with the plaintiffs custody of the minor child Lavanya, and for other consequential relief's.
2. Brief facts of plaintiff's case are that:
The plaintiff is the legally wedded wife of the 3rd Defendant . 1st Defendant is the brother of 3rd Defendant and 2nd Defendant is the wife of 1st Defendant . The plaintiff and 3rd Defendant have two daughters viz., Megha born on 17.1.1998 and Lavanya born on 29.8.2002. There was marital disharmony and financial difficulties faced by 3 O.S.No. 25002/2012 the plaintiff and 3rd Defendant. In view of this 1st and 2nd Defendant s came forward to look after the youngest daughter of the plaintiff. The 3rd Defendant took some signatures of the plaintiff informing her that they were needed for the purpose of admitting the child to school etc., The Defendant No.3 without the knowledge and consent of the plaintiff taken away all the documents relating to the birth of the youngest child Lavanya. The plaintiff received legal notice dated 16.12.2010 from Defendants 1 and 2 claiming that youngest daughter of plaintiff was given in adoption to Defendants on 24.11.2002 through alleged adoption deed. There was no ceremony of giving and taking the child in adoption. The 3rd Defendant is not having any authority to give the child in adoption to the 1st and 2nd Defendants without the consent of the plaintiff, who is natural mother and guardian of the child. Defendants 1 and 2 have no legal right to keep the child in their custody.
Hence the adoption deed dated 24.11.2002 is null and void and not binding on the plaintiff. The plaintiff is also entitled 4 O.S.No. 25002/2012 to the custody of the child who is in the custody of the 1st and 2nd plaintiff. Hence this suit.
3. After registration of this suit, suit summons were issued to the Defendant . In-response to the summons, Defendants 1 and 2 appeared before this court through their counsel and filed written-statement denying all the material averments made in the plaint but admitted their relationship with the plaintiff as described by plaintiff in Para No.3 of the plaint that plaintiff is the legally wedded wife of Defendant No.3, the Defendant No.1 is the Brother of Defendant No.3 and Defendant No.2 is the wife of Defendant No.1 and further contended that the suit is not maintainable either in law and facts. There is no cause of action. Defendants denied the averments made in Para No.4 of the plaint regarding taking signature of plaintiff by playing fraud. Defendants 1 and 2 further submit that they married long back and out of their wedlock they had not begotten any children. The plaintiff and 3rd Defendant decided to give their second daughter in adoption to 5 O.S.No. 25002/2012 Defendants 1 and 2. Both plaintiff and Defendants held ceremony of adoption on 17.11.2002. The parties with consent reduced said adoption in to writing on 24.11.2002. The minor child Lavanya was admitted to school in Mysore by adoptive parents and name of Defendant No.2 entered in the column of the official records as father and since then the child is in the custody of Defendants 1 and 2. Defendants 1 and 2 are providing good education and taking care of the child since 2002. For all these reasons, Defendants pray to dismiss the suit of the plaintiff.
4. On the basis of the above Pleadings, following Issues have been framed:-
(1) Whether the plaintiff proves that the natural mother is entitled for minor child Lavanya?
(2) Whether the Defendant No.1 and 2
proves the due adoption of said Lavanya on 17.11.2002?
6 O.S.No. 25002/2012(3) Whether the plaintiff further proves that there is interference of Defendant No.1 to 3 for the custody of child?
(4) What order or decree?
5. The plaintiff in order to prove her case, got filed her affidavit by way of examination-in-chief. The same was taken as PW1 and got marked documents Ex.P1 and 2 and closed her side. Inspite of grant of sufficient time and opportunities were given the Defendants neither cross examined Pw-1 nor lead their evidence.
6. I have heard the arguments of the learned counsel for the plaintiff. The learned counsel for the Defendant not canvassed any arguments.
7. My findings to the above Issues are as follows:
Issue No.1) ........In the negative Issue No.2) ........In the negative Issue No.3) ........In the negative Issue No.4) ........As per the final orders, For the following:7 O.S.No. 25002/2012
REASONS
8. Issue Nos. 1 to 3:- Since these issues are inter linked with each other they are taken up together for common discussion in order to avoid repetition of facts. PW1 in her affidavit evidence has reiterated and re-affirmed the contents of the plaint averments and got marked documents at Ex.P1 and P2. She has not been cross examined by the learned counsel for Defendants. Hence cross examination of PW1 was taken as nil.
9. It is the case of the plaintiff that she is the legally wedded wife of Defendant No.3 having married him in 1995. Defendant No.1 is the brother of Defendant No.3 and Defendant No.2 is the wife of Defendant No.1. The plaintiff and Defendant No.3 have two daughters viz., Megha born on 17.1.1998 and Lavanya, aged about 8 years born on 29.8.2002. The plaintiff and Defendants have always sharing cordial relationship. In view of financial difficulties and consequent marital disharmony faced by the plaintiff and Defendant No.3, Defendant No.3 assured the 8 O.S.No. 25002/2012 plaintiff that Defendants 1 and 2 had come forward to look after the youngest daughter by name Lavanya as solution to help solve the financial and marital crisis between the plaintiff and Defendant No.3. The plaintiff reluctantly agreed to Defendants 1 and 2 taking over the financial responsibility of the youngest daughter Lavanya, but Defendant No.3 took some signatures of the plaintiff informing her that the same were required for the purpose of admitting the child to the school. The state of affairs being so, to the shock and surprise of the plaintiff she has received legal notice dated 16.12.2010 issued on behalf of Defendants 1 and 2 claiming that the youngest daughter of the plaintiff was given in adoption to them on 24.11.2002 and the documents in this regard is not registered and the signature of the plaintiff had been taken only on the last page. No ceremony of giving or taking the child in adoption was performed. Defendants 1 and 2 without the consent of the plaintiff denying the right of the plaintiff as mother of minor child Lavanya and Defendants 1 and 2 have no legal right to keep the child in their custody. At no point of time 9 O.S.No. 25002/2012 the child was given in adoption. Hence, she contends that the adoption deed dated 24.11.2002 is void and not binding on her. Hence she has come up with the present suit for declaration to declare that the adoption dated 24.11.2002 is null and void and to declare that the plaintiff being the natural mother is entitled to the custody of the minor child Lavanya, aged about 8 years and to direct Defendants 1 and 2 to handover custody of the minor child Lavanya and for Permanent Injunction restraining Defendants 1 to 3 from interfering with the plaintiffs custody of minor child Lavanya.
10. From the plaint pleadings and affidavit evidence of PW1 prima facie it appears that there is no cordial relationship in between the plaintiff and Defendant No.3 who being wife and husband. Defendants have not disputed the relationship of the plaintiff with Defendants i.e., plaintiff is the legally wedded wife of Defendant No.3 and Defendant No.1 is the elder brother of Defendant No.3 and Defendant No.2 is the wife of Defendant No.1. They have 10 O.S.No. 25002/2012 also admitted their cordial relationship with the family of the plaintiff, but they denied the allegations made by the plaintiff that Defendants 1 and 2 have taken the responsibility of the youngest daughter of the plaintiff by name Lavanya. They have also denied that they have taken financial responsibility of youngest daughter of the plaintiff by name Lavanya by keeping her with their custody and to give her good education for her bright future. But it is the contention of Defendants that Defendants 1 and 2 married long back and out of their wedlock they have not begotten any child. Considering this aspect, plaintiff and Defendant No.3 decided to give their second daughter in adoption to Defendants 1 and 2. Therefore, ceremony relating to adoption was held on 17.11.2002 between both the parties and both the parties out of their own will and wish have consented to execute documents. Accordingly terms of adoption reduced into writing on 24.11.2002 and the plaintiff and Defendant No.3 have given their second daughter Lavanya in adoption to Defendants 1 and 2. Accordingly, Defendant No.1 and 2 have taken Lavanya in 11 O.S.No. 25002/2012 adoption and since from the date of execution of adoption deed dated 21.11.2002 Lavanya is under the care and custody of Defendants 1 and 2. Therefore, Defendants 1 and 2 contends that the plaintiff and Defendant No.3 have voluntarily out of their will and wish have given their second daughter Lavanya in adoption to Defendants 1 and 2. Therefore, Defendants 1 and 2 have taken Lavanya in adoption according to ceremonies held between the parties. Therefore, Defendants 1 and 2 contends that they are looking after Lavanya as their own daughter as adoptive parents. It is further case of Defendant Nos. 1 and 2 that plaintiff and Defendant No.3 have given their second minor daughter Lavanya in adoption when the child was three months old and as the adoption has taken place according to ceremonies held on 17.11.2002 and in view of the plaintiff and Defendant No.3 have given their child Lavanya in adoption to Defendants 1 and 2 by executing adoption deed dated 24.11.2002 the plaintiff cannot contend that no giving and taking ceremony was held and therefore, the adoption deed dated 24.11.2002 is not valid. 12 O.S.No. 25002/2012
11. On going through the pleadings of both the parties, it is crystal clear that an agreement in respect of taking adoption of minor child Lavanya was reduced into writing in between the parties on 24.11.2002. The said document is marked at Ex.P1, which is unregistered document titled as adoption agreement. In Ex.P1 it is stated that the plaintiff and Defendant No.3 have given their youngest daughter Lavanya, aged about 3 months in adoption to Defendants 1 and 2 and both the parties to the suit have subscribed their signature on Ex.P1. The witnesses have also signed on Ex.P1. Though Ex.P1 is unregistered, but as per the recital of Ex.P1, the youngest daughter of the plaintiff and Defendant No.3 by name Lavanya, when she was aged about 3 months was given in adoption to Defendants 1 and 2. From the date of Ex.P1 was reduced into writing i.e., on 24.11.2002 the child Lavanya is under the care and custody of Defendants 1 and 2 and they have taken all the responsibilities of bringing up the child namely Lavanya and her welfare by providing good education for her bright future. Now the said child is 13 O.S.No. 25002/2012 aged about 14 years. So, for a period of 14 years the said child was brought up by Defendants 1 and 2 and for all practical purposes Defendants 1 and 2 are looking after the said child Lavanya as adoptive parents. The child Lavanya has grown up and now she is aged 14 years and she is under the impression that Defendants 1 and 2 are nothing but her own parents. It appears that the said child had no occasion to treat the plaintiff and Defendant No.3 as her own parents.
12. From the plaint pleadings and affidavit evidence of PW1, it appears that due to misunderstanding between the plaintiff and Defendant No.3 who are wife and husband, they are not living together and it appears that Defendant No.3 is residing separately from that of plaintiff and the plaintiff is not in cordial terms with Defendant No.1 and 2. If at the plaintiff was in good terms with her Husband defendant No.3, she should have made defendant No.3 as plaintiff No.2, but, she has made her Husband as party to the suit as defendant No.3. It shows that the plaintiff is not in 14 O.S.No. 25002/2012 good terms with defendant No.3 and also not in good terms with defendant Nos. 1 & 2. The defendant No.3 might have been in good terms with defendant Nos. 1& 2. Therefore, it appears that the plaintiff with an intention to harass Defendants 1 and 2 has come up with the present suit for declaration to declare that the adoption deed dated 24.11.2002 is null and void and to declare that the plaintiff being natural mother is entitled to the custody off the minor child Lavanya and to direct Defendants 1 and 2 to handover custody of the minor child Lavanya. Though the plaintiff being natural mother of minor child Lavanya, but herself and her Husband Defendant No.3 have given their child Lavanya in adoption to Defendants 1 and 2, as such it is clear that she has lost her status of natural mother of minor child Lavanya. In view of the adoption deed / agreement dated 24.11.2002 being unregistered document, it has no value in the eye of law. Therefore, the same cannot be declared as null and void.
15 O.S.No. 25002/2012
13. As I have already stated above, in view of the plaintiff and Defendant No.3 have given their minor child Lavanya in adoption to Defendants 1 and 2 about 14 years back and since the minor child Lavanya is now aged about 14 years and she is under the care and custody of Defendants 1 and 2 and as Defendants 1 and 2 are bringing up the said child in all respects for her bright future, the plaintiff has no right to claim that she is the natural mother of minor child Lavanya. Under the facts and circumstances of the case, Defendants 1 and 2 cannot be directed to handover custody of the minor child Lavanya to the plaintiff. Therefore, I am of the considered view that the plaintiff has failed to prove that she being the natural mother is entitled for custody of minor child Lavanya and she has also failed to prove that there is interference of Defendants 1 to 3 for the custody of the child. In view of the plaintiff and Defendant No.3 out of their own will and wish have given their youngest daughter Lavanya in adoption to Defendants 1 and 2, the question of interference by Defendants 1 to 3 to the custody of the child to the plaintiff does not arise, since, 16 O.S.No. 25002/2012 the minor child is not with the custody of the plaintiff. As I have already stated above the document Ex.P1 is not a registered document and there is no recital in Ex.P1 regarding giving and taking ceremony which was held between the parties in respect of adoption of minor child Lavanya and moreover Defendants have not at all entered into witness box nor produced any documents in respect of due adoption of Lavanya dated 17.11.2002. Therefore, I am of the considered view that Defendants 1 and 2 have failed to prove due adoption of Lavanya as on 17.11.2002. Hence, I answer Issue Nos. 1 to 3 in the negative.
14. ISSUE NO.4:- The plaintiff has filed this suit against defendants for declaration to declare that the adoption dt. 24.11.2002 as null and void and not binding on her and for declaration to declare that she being the natural Mother is entitled to the custody of the minor child Lavanya and to direct defendant Nos. 1 and 2 to hand over the custody of the minor child Lavanya to her and for Permanent Injunction restraining defendants from 17 O.S.No. 25002/2012 interfering with the plaintiffs custody of minor child Lavanya.
15. I have already come to the conclusion and answered issue Nos. 1 and 3 in the Negative holding that the plaintiff has failed to prove that the natural Mother is entitled to the minor child Lavanya and as she has also failed to prove the alleged interference of defendants for custody of child, I am of the considered view that the plaintiff is not entitled to the relief's as sought for in the plaint. Hence, I proceed to pass the following:
ORDER The suit of plaintiffs is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this the 15th day of December, 2016).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
18 O.S.No. 25002/2012ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 Smt. Pushpavathi LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1 Unregistered agreement of adoption Ex.P2 Copy of legal notice LIST OF WITNESSES EXAMINED FOR THE DEFENDANT /S:
NIL LIST OF DOCUMENTS MARKED FOR THE DEFENDANT /S:
NIL (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.19 O.S.No. 25002/2012
15.12.2016 Pltff: by Sri P D No.1&2 by Sri KCP D No.3 by Sri MLK Judgment Judgement pronounced in the open court (Vide separate detailed Judgement) The suit of plaintiffs is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE