F.A.O. No. 5390 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: March 11, 2011 (1) FAO No. 5390 of 2009 (O&M) Raj Kumar and another .. Appellants v. Sukhwinder Kaur and others .. Respondents (2) FAO No. 2394 of 2010 (O&M) Sukhwinder Kaur .. Appellant v. General Public and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. H. S. Saini, Advocate for the appellants in FAO No. 5390 of 2009 and for respondents No. 3 and 4 in FAO No. 2394 of 2010. Mr. Balram Singh, Advocate for respondent No. 1 in FAO No. 5390 of 2009 and for the appellant in FAO No. 2394 of 2010. Mr. Neeraj Sharma, Advocate for respondent No. 3 in FAO No. 5390 of 2009 and for respondent No. 2 in FAO No. 2394 of 2010. ... Rajesh Bindal J. 1. This order will dispose of the above mentioned two appeals bearing FAO Nos. 5390 of 2009 and 2394 of 2010, as the same arise out of judgment dated 18.8.2009, passed by the learned court below, pertaining to the custody of two minor children, born out of the wedlock of Sukhwinder Kaur and Jagpal. F.A.O. No. 5390 of 2009 [2] 2. In the petition filed by Sukhwinder Kaur under the Guardian and Wards Act, 1890, the learned court below partially accepted the same while granting her the custody of younger son-Jashan Deep and dismissing the petition for claim of custody of elder son-Anmol. 3. Briefly, the facts are that marriage between Sukhwinder Kaur and Jagpal was solemnised on 19.3.2000. Two sons were born out of the wedlock, namely, Anmol on 8.2.2001 and Jashan Deep on 24.6.2005. The parties are living separate since 26.8.2005. 4. FAO No. 5390 of 2009 has been filed by Raj Kumar and Reshmo challenging the judgment of the learned court below on the ground that younger son, namely, Jashan Deep had been given to them by Sukhwinder Kaur and her husband-Jagpal in adoption immediately after his birth. 5. FAO No. 2394 of 2010 has been filed by Sukhwinder Kaur, the natural mother, claiming the custody of elder son, who at present is living with the natural father-Jagpal. 6. In FAO No. 5390 of 2009, learned counsel for the appellants submitted that the findings recorded by the learned court below that adoption of Jashan Deep, the younger son has not been properly proved, are perverse. In fact, immediately after the birth of Jashan Deep, his natural parents had decided to give him in adoption to the appellants considering the fact that they already had a son and the appellants, who were married for about 15 years, did not have a child. The names of the appellants were entered as parents of Anmol even in the office of Registrar of Births and Deaths with Municipal Committee, Phagwara. Photographs (Ex. R4 to Ex. R7) of the adoption ceremony, which had taken place on 17.7.2005 are on record and so is the document, i.e., Panchayatnama (Ex. D1) showing the signatures of the Sarpanch and Panches noticing the adoption of Jashan Deep by the appellants. 7. He further referred to the medical record of the child showing him to be son of Raj Kumar, the appellant. However, those documents were not proved in evidence but have only been marked. 8. He further relied upon the oral statements of RW-1, RW-2 and RW-4, residents of the village, who allegedly participated in the adoption ceremony which had taken place in Gurudwara Sahib. He also referred to F.A.O. No. 5390 of 2009 [3] certificate dated 17.7.2005 of Gurudwara Sahib, where the adoption ceremony was held. The aforesaid document has also not been exhibited. The record of the school, where Jashan Deep is studying, has also been produced as Ex. R12 showing his parentage. 9. Referring to the aforesaid evidence, learned counsel for the appellants submitted that since the persons, who were giving Jashan Deep in adoption and who were taking were the family members, the ceremonies were informal in kind. No formal document was executed. It was also for the reason that no dispute was apprehended later on. He further submitted that all the requisite conditions as provided for under the Hindu Adoption and Maintenance Act, 1956 had been complied with. The mother had initially consented for giving the son in adoption, however, later on account of some dispute with her husband, she started raising hue and cry. For the first time, Criminal Writ Petition No. 943 of 2006 was filed by her on 18.10.2006 claiming custody of the child stating that he had been picked up by the appellants two months after the birth, whereas in FIR No. 101 got registered on 28.9.2006, it was mentioned that after putting pressure on her, the younger son was given to the appellants. He further submitted that primarily the welfare of the child is to be seen. He is studying in a good school. The mother will not be able to afford his education as in the application filed under Section 125 Cr.P.C., she claimed maintenance on the ground that she was un-employed. He further submitted that the appellants have no objection in case the custody of Jashan Deep is given to the mother, but the fact remains that he even does not recognise her as from the very beginning, he is living with them. 10. On the other hand, in response to the contentions raised by learned counsel for the appellants, learned counsel for respondent-mother submitted that for any valid adoption, consent of the mother is required. In the present case, the same is missing. There was no ceremony for giving the child in adoption and also taking the custody. No document was executed for the purpose at the time when the ceremony had allegedly taken place. The photographs sought to be relied upon by the appellants were taken after 40 days of the birth of the child, where all the family members were present, where some small gifts were also exchanged between the families as per the customs. It was not a ceremony for the purpose of giving F.A.O. No. 5390 of 2009 [4] Jashan Deep in adoption. The Panchayatnama and the certificate from Gurudwara Sahib are created documents. Both these do not contain the signatures of natural parents of Jashan Deep. The claim made by the appellants was that adoption ceremony had taken place in Gurudwara Sahib, but the photographs do not show that the place where those were klicked was Gurudwara Sahib. The oral evidence led by the appellants was also not trust worthy considering the fact that it was of the persons, who though had claimed that they were present when the adoption ceremony was held, however, they could not recognise all the persons present in photographs and were themselves also not present there. The submission was that in the absence of any legal document showing the adoption of Jashan Deep by the appellants, he will not have any right in that family. 11. He further submitted that the primary dispute on account of which the wife had been shunted out of the matrimonial home was handing over the custody of the younger child to the appellants without her consent. He was born on 24.6.2005. She was shunted out of home on 26.8.2005. Before approaching the court, she made all efforts to get back the custody of her son, but had to indulge in litigation only after she failed in her efforts. At present, she is employed as a Teacher in a school. She can very well take care of the welfare of the child as Jagpal, natural father of the child, was earlier employed in a bank but has been dismissed and is presently dependent on his brother. He further submitted that the most clinching document is an affidavit filed by the appellants in the Criminal Writ Petition filed by the mother stating therein that the matter in dispute has been compromised between the parties and they have handed over the custody of the child to his natural father, but still it is sought to be claimed by the appellants that they are the adoptive parents of master-Jashan Deep. 12. In FAO No. 2394 of 2010 filed by the mother seeking custody of elder son-Anmol, who at present is living with his father, it was stated that in response to the application filed by her seeking maintenance under Section 125 Cr.P.C., the stand of the husband was that he was un-employed. If he has no source of income, how can he take care of the welfare of the child whose needs will increase with his age. In fact, the child was in the custody of the mother and had been taken away by the father from the school. For the occurrence, even FIR No. 64 was got registered by the F.A.O. No. 5390 of 2009 [5] mother on 25.5.2007. This was so stated by her even while appearing as AW-6, but there was no cross-examination on this point. 13. In response to the aforesaid contentions raised by learned counsel for the mother, learned counsel for respondent-Jagpal (natural father of Anmol) submitted that the wife had left the matrimonial home on 26.8.2005 leaving both the children. In fact, she had illegally taken Anmol from the school on 25.9.2006, as is evident from certificate (Ex. R3) issued by the school. He further submitted that the husband is doing the business of property dealing and is taking care of the children very well. He further submitted that he has no objection in case custody of either of the children is given to the mother. 14. In response to the aforesaid contentions, even the mother, who was present in person in court, stated that custody of the younger son be given to her, whereas elder son can live with the father. 15. Heard learned counsel for the parties and perused the relevant referred record. 16. As far as the issue regarding adoption of Jashan Deep by the appellants is concerned, in my opinion, on the basis of evidence produced on record by the appellants, it cannot possibly be opined that he had been given in adoption to them. Merely getting their names recorded with the Registrar of Births and Deaths as parents will not prove that they are the parents. Even from the certificate so produced, it is evident that the date of registration was 30.6.2005, but allegedly the ceremony for taking Jashan Deep in adoption had taken place on 17.7.2005. Meaning thereby that the appellants had started creating documents much in advance. The photographs produced on record do not, in any manner, show that it was the kind of ceremony for giving or taking a child in adoption. To the similar effect is the oral evidence led by the appellants, which does not inspire confidence. The Panchayatnama produced on record is also not trust worthy considering the fact that it does not contain the signatures of either of the parties, namely, the parents, who were giving the child in adoption or the adoptive parents. It only contains signatures of Sarpanch and Panches and this fact was also admitted at the time of hearing that Raj Kumar, the adoptive father, was a Panch in the village. Above all, there is affidavit on record sworn by the appellants in the Criminal Writ Petition filed by the F.A.O. No. 5390 of 2009 [6] respondent-mother, where they categorically stated that the matter in dispute has been compromised and they have handed over the custody of the child back to his natural father. It does not lie in their mouth to again claim themselves to be adoptive parents. 17. For the aforesaid reason, I do not find that adoption of Jashan Deep by the appellants is proved on record. The findings of the learned court below to that effect are affirmed. 18. Now the question before this court is as to whether the judgment of the learned court below partially accepting the petition filed by the mother regarding custody of younger son-Jashan Deep and dismissing the claim regarding the custody of her elder son-Anmol is just and reasonable considering the material on record and is in the best interest of the children. The material, which has come on record, is that two sons were born on 8.2.2001 and 24.6.2005. The mother had left or was turned out of the matrimonial home on 27.8.2005, i.e., just two months after the birth of the younger son. It has also come on record that she had taken the elder son from the school on 25.9.2006 and he remained with her till such time in May, 2007, he was again taken by the father, for which one FIR was got registered by her. Meaning thereby, the elder son will be recognising as to who his mother is. As against this, the younger son is living in the house where his natural father and the alleged adoptive parents are living. Learned counsel for the adoptive parents may be right in claiming that the younger child may not even recognise the respondent, natural mother, as his mother, whereas the elder son, who had been living in the family for about four years after his birth and for a period of about 8 months in 2006-07, will certainly be recognising her. 19. In view of my aforesaid discussion, while upholding the judgment of the learned court below as far as the issue regarding adoption of Jashan Deep is concerned, it is directed that his custody shall be handed over by the appellants in FAO No. 5390 of 2009 to his natural father. The records, if any, maintained regarding his parentage shall be got corrected accordingly. As far as the custody of Anmol is concerned, the same shall be handed over by the natural father, namely, Jagpal to the natural mother, Sukhwinder Kaur. F.A.O. No. 5390 of 2009 [7] 20. The appeals are disposed of accordingly. (Rajesh Bindal) Judge March 11, 2011 mk