Reetika Kaur vs Darshan Singh Combow & Ors.
2013 Latest Caselaw 5422 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: November 25, 2013

+                        CM(M) No.338/2013

      REETIKA KAUR                                         ..... Petitioner
                         Through      Ms.Meenakshi Midha, Adv.

                         versus

      DARSHAN SINGH COMBOW & ORS              ..... Respondents
                  Through Respondent No.4 in person.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of filing of the present petition under Article 227 of the Constitution of India, the petitioner has assailed the impugned order dated 3rd August, 2012 passed by the Addl. District Judge-03 (North), Tis Hazari Courts, Delhi in RCA No.70/2010.

2. The petitioner/plaintiff filed a suit for declaration with the averments that respondents/defendants No.3 & 4 are the natural parents of the petitioner while respondents/defendants No.1 & 2 are her adopted parents. Respondents No.3 & 4 are legally married and out of the wedlock, the petitioner was born on 3rd April, 1986 at New Delhi. Respondents No.1 & 2 are the relatives of respondents No.3 & 4 who had three sons but no daughter and therefore, were desirous of adopting a daughter and hence, adopted the petitioner on 2nd July, 1998. An adoption deed was also executed on the same day.

3. It was further stated that respondents No.1 & 2 were settled in Canada prior to the adoption and, therefore, they persuaded the respondents No.3 & 4 to give the petitioner in adoption as they would take the petitioner to Canada. At the time of alleged adoption, no ceremony of giving or taking in adoption was performed and the petitioner was taken into custody by the respondents No.1 & 2. After the adoption of the petitioner, her parents' names were also changed and the names of respondents No.1 & 2 were substituted. At the relevant time, the petitioner was studying in 9th Class in Guru Harkishan Public School, situated at Hemkunt Colony, Nehru Place, New Delhi and their names still continue to be mentioned as the name of the parents of the petitioner in all records. However, the petitioner called respondents No.1 & 2 telephonically and even sent a number of letters to them but they did not take her with them.

4. It was also submitted before the learned trial Court that respondents No.1 & 2 came to India and started living at their residence at Govind Puri Extension from 20th March, 2008 onwards, but did not accede to the request of the petitioner to stay with them. Now, the petitioner is also not desirous to live with respondents No.1 & 2 and wants to go back to her natural parents, i.e. respondents No.3 & 4 who are also not desirous to keep the petitioner with them and hence, the suit was filed seeking a declaration that the adoption deed was null and void and in all the educational certificates, the name of the natural parents of the petitioner be recorded instead of the names of respondents No.1 & 2.

5. After notice, respondents appeared before the learned Trial Court and a joint written statement was filed by respondents No.1 & 2 through their attorney and also a joint written statement was filed by respondents No.3 &

4. However, all the respondents did not contest the petition, rather admitted the version of the petitioner and, therefore, the joint statement of respondents No.3 & 4 was recorded by the learned Trial Court on 13th October, 2009 wherein they admitted that they were the biological parents of the petitioner and had no objection if the relief sought by the petitioner was allowed. The statement of Sh.Jasbir Singh, the Special attorney of respondents No.1 & 2 was also recorded on the same day who stated that he had the instructions to state on behalf of respondents No.1 & 2 that they had no objection if the suit filed by the petitioner would be decreed.

6. By order dated 9th December, 2009, the learned Trial Court dismissed the suit of the petitioner being not maintainable. Aggrieved by the said order, the petitioner filed an appeal being RCA No.70/2010 which was filed on 1st October, 2010. Hence, an application under Section 5 of the Limitation Act was also moved for condonation of delay in filing the said appeal. The appeal as well as the application for condonation of delay was dismissed by the learned Addl. District Judge, vide order dated 3rd August, 2012. The said order has been challenged by the petitioner in the present petition.

7. The prayer made in the present matter is not opposed by the respondent Nos.1 and 2 or any other party. In fact the petitioner had sought the relief of declaration to the fact that adoption deed dated 2 nd July, 1998 be declared null and void, also that in the educational certificates of the petitioner, the name of the natural parents i.e. the name of the respondent Nos.3 and 4 be read and written instead of respondent Nos.1 and 2 i.e, adopted parents.

8. Certain relevant dates are necessary, the details of which are given as under :

02.07.1998 Deed of adoption entered between respondent No.1 and 2 on the one hand and respondent No.3 and 4 on the other hand. However, at the time of adoption no such ceremony of 'giving and taking' of the petitioner was performed and the custody of the petitioner was not handed over to the respondent Nos.1 and 2 and the petitioner remained in the custody of the respondent No.3 and 4 since then.

20.03.2008 Respondent No.1 and 2 came to India and upon being requested by the petitioner, the respondent No.1 and 2 refused to keep the petitioner with them and further stated that they do not wish to keep the petitioner as the custody of the petitioner was never handed over to them and further that the ceremony of adoption never took place. 2008 The petitioner filed a suit for declaration bearing Suit No.234/08 against the respondent Nos.1 to 4 being the adopted as well as natural parents for declaration of the adoption deed dated 2.7.1998 as null and void, and further in the educational certificates of the petitioner, the name of the natural parents being respondent Nos.3 and 4 be read and written instead of name of adopted parents being respondent Nos.1 and 2.

2008 The respondent Nos.1 and 2 had filed their written statement in which they admitted the fact that at the time of adoption no such ceremony of 'giving and taking' of the petitioner was performed and the custody of the petitioner was

and the petitioner remained in the custody of the respondent No.3 and 4 since then. The respondent Nos.1 and 2 further admitted that when they returned to India at their residence at

Kalkaji on 20.03.2008, they refused the request of the petitioner to take her as their legally adopted daughter. The respondent Nos.1 and 2 further stated that they have no objection if the relief sought by the petitioner is granted to her. The natural parents of the petitioner being respondent No.3 and 4 filed their written statement reiterating the aforesaid.

09.12.2009 The learned Addl. Senior Civil Judge dismissed the suit of the petitioner as being not maintainable while holding that the same is barred by Section 15 of the Hindu Marriage Adoption and Maintenance Act, 1956.

01.10.2010 Aggrieved by the order dated 09.12.2009 passed by the Ld. Addl. Senior Civil Judge, the petitioner filed an appeal before the Ld. Senior Civil Judge, Delhi.

03.08.2012 The Ld. Addl. District Judge, Delhi dismissed the appeal of petitioner.

9. The following substantial questions of law arise for the consideration before this Court :

i) Whether the courts below failed in correctly appreciating the law laid down by the Hon'ble Supreme Court of India in respect of the validity of adoption deed under Section 11 of Hindu Adoption and Maintenance Act, 1956 ?

ii) Whether adoption deed without ceremony of 'giving and taking' is valid under Section 11 of Hindu Adoption and Maintenance Act, 1956 ?

iii) Whether the courts below erred in not cancelling/holding the adoption deed void in the light of clear admission by the

respondents of their lack of intention to carry out the adoption and express consent for the cancellation of adoption deed ?

10. During the course of hearing Ms. Meenakshi Midha, learned counsel appearing on behalf of petitioner has argued that at the time of the alleged adoption, no ceremony of 'giving and taking' had actually been performed as mandated under Section 11 of the Hindu Adoptions & Maintenance Act, 1956 for a valid adoption and the petitioner remained in the custody of the respondent Nos.3 and 4 even after the adoption deed and since then, the petitioner is in the custody of the respondent Nos.3 and 4. It is an admitted position that the custody of the petitioner was never taken by the respondent Nos.1 and 2 and further respondent Nos.1 and 2 had never admitted or accepted the petitioner as their adopted daughter.

11. Both the Courts below erred in interpreting the conjunctive reading of Clause (iv) of Section 6 and Clause (vi) of Section 11 of the Act to determine whether a valid adoption has been made or not. It is important to point out that the physical act of giving and receiving of the boy or the girl is necessary to the validity of an adoption. Mere expression of the consent or the execution of a deed of adoption, though registered, but not accompanied by actual delivery of the boy or the girl, does not operate as a valid adoption. To constitute an adoption, there should be some overt act with signifies the actual delivery of the child with intent to transfer the child from the family of its birth to the family of its adoption. The actual giving and taking of the child is a requirement and a condition i.e. absolute. It is of the essence of adoption and the law does not accept any substitution to this.

12. Learned counsel has placed reliance upon the judgment of Supreme Court in the case of Dhanraj Vs. Surajbai, AIR 1975 SC 1103 wherein it

was held that the physical act of giving and receiving was absolutely necessary for the validity of an adoption under the law as it existed before coming into force of the present Act, and the position under the Act is identical. It is imperative that there should be some overt act to signify delivery of the child from one family to another. However, mere expression of consent, or the execution of the deed of adoption, though registered, but not accompanied by actual giving and receiving, will not operate as a valid adoption.

The Supreme Court in the matter of Nilima Mukherjee vs. Kantabhushan Kosh, AIR 2001 SC 2725 held that 'in the absence of documentary or other proof of an adoption, the ceremonies also not shown to have been performed, the fact of such an adoption cannot be believed.

13. This Court is of the view that the Courts below erred in interpreting Section 15 of the Hindu Adoption and Maintenance Act, 1956 since the same refers to the bar to cancellation of a valid adoption. The Court further erred in not appreciating that in the present case, the adoption of the petitioner was not a valid adoption since the mandate as contained in Section 11 (vi) of the Act had not been performed by the respondents and in absence of the same, the adoption could not be construed to be a valid adoption within the purview of the Act.

14. In the present case, all the averments made by the petitioner has not been controverted by the respondents rather the respondent Nos.1, 2 and 4 have filed their affidavit in support of the prayer made in the original plaint where the relief of declaration was sought to declare the adoption deed dated 2nd July, 1998 as null and void.

15. In the present case courts below failed to appreciate the fact that the respondents No.1 and 2 had filed their written statement in which they admitted the fact that at the time of adoption no such ceremony of giving and taking of the petitioner was performed and the custody of the petitioner was not handed over to the respondent Nos.1 and 2 and the petitioner remained in the custody of the respondent Nos.3 and 4 since then. The respondent Nos.1 and 2 further admitted that when they returned to India at their residence at Kalkaji on 20th March, 2008, they refused the request of the petitioner to take her as their legally adopted daughter. The respondent Nos.1 and 2, further stated that they have no objection if the relief sought by the petitioner is granted to her.

16. In view of abovementioned reasons, the impugned orders are set aside/quashed. The prayer made in the suit filed by the petitioner is allowed. The suit is accordingly decreed as in view of affidavits filed by the respondent Nos.1, 2 and 4, no further evidence on behalf of petitioner is required as no objections are raised by them. Decree be accordingly drawn by the learned Trial Court. Copy of the order be placed on record in the Trial Court for purpose of drawing the decree.

17. The petition is accordingly disposed of.

(MANMOHAN SINGH) JUDGE NOVEMBER 25, 2013