Final Order 1

Order Details: Copy of Judgment
Pdf Text: Adopt.Pet.No.65/2020 Judgment : 1 :
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ADOPTION PETITION NO.65 of 2020
In the matter of Adoption of
Mr.Mangesh Govind Nevrekar
Aged-25 years, Date of Birth
10/10/1995, Occ-Service
Indian Inhabitant, Residing at Rungta
Building, 2, Dr.Wilson Street, Vithalbhai
Patel Road, Opp.Wilson High School,
Mumbai – 400004, Under Hindu
Adoption and Maintenance Act, 1956.
1. MR.HARENDRA MATUBHAI SHAH
Aged 87 years, Occupation: Retired,
Indian Inhabitant,
Residing at Rungta Building, 2, Dr.Wilson Street,
Vithalbhai Patel Road, Opp.Wilson High School,
Mumbai-400004. ... Petitioner
V e r s u s
1. MR.GOVIND MAHADEV NEVREKAR
Aged about 70 years, Occupation – Service,
Indian Inhabitant, Residing at Rungta
Building, 2, Dr.Wilson Street,
Vithalbhai Patel Road, Opp. Wilson High School,
Mumbai-400004.
2. MRS.RUKMINI GOVIND NEVREKAR
Aged about 64 years, Occupation – Service,
Indian Inhabitant, Residing at Rungta
Building, 2, Dr.Wilson Street,
Vithalbhai Patel Road, Opp. Wilson High School,
Mumbai-400004.
3. MR.MANGESH GOVIND NEVREKAR
Aged about 25 years, Date of Birth 10/10/1995
Occupation – Service,
Indian Inhabitant, Residing at Rungta
Building, 2, Dr.Wilson Street,
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Vithalbhai Patel Road, Opp. Wilson High School,
Mumbai-400004. .. Respondent
Ld. Advocate Mr. D.K.Jain for Petitioner and Respondents.
CORAM : HIS HONOUR JUDGE
SHRI. M.M.UMAR
(Court Room No. 22)
DATE : 1st December, 2020.
JUDGMENT
1. The Petitioner Harendra Matubhai Shah has filed the present
adoption petition under the provisions of Hindu Adoption and
Maintenance Act, 1956 in the matter of Adoption of the male Child
Mangesh Govind Nevrekar, who was born on 10/10/1995. The
Respondent No.1 Mr.Govind Mahadeo Nevrekar and Respondent No.2
Mrs.Rukmini Govind Nevrekar are the biological parents of Mangesh
Nevrekar (Respondent No.3).
2. It is contended that the petitioner was working with Life
Insurance Corporation of India (LIC) as the Development Officer and
he is retired from the Service. The respondent no.1 and 2 are the
servants of the Petitioner since last 4 decades and they are providing
sincere services to the petitioner and taking his full care after the death
of his wife. It is contended that Mrs.Sudha Harendra Shah was the wife
of petitioner, she expired on 19/10/2017 and there was no issue to her
from the marriage with the petitioner.
3. It is contended that respondent no.1 and 2 having another elder
son viz. Dilip Govind Nevrekar, who is married and staying separate. It
is contended that in the year 1999 the petitioner and his wife expressed
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their willingness to adopt Mangesh son of the Respondent no.1 and 2
and respondents no.1 and 2 also agreed to give him in adoption to the
petitioner and his wife. It is contended that the oral consent of the
family members of the petitioner and respondents were obtained and
on 10/10/1999 in simple adoption ceremony which was closely held,
petitioner and his deceased wife accepted the custody of Master
Mangesh from the Respondent no.1 and 2 in adoption, in presence of
the family members of both the sides. It is contended that in the birth
certificate the name of said child was recorded as Mangesh Govind
Nevrekar and continue to remain same even after the said adoption on
10/10/1999, due to ignorance. It is contended that proper adoption
deed was not drafted but the fact of adoption was recorded on a plain
piece of paper and it was signed by both the parties and witnesses.
4. It is contended that the old adoption deed is not traceable
therefore, as per the legal advice a fresh drafted adoption deed was
executed on 10/10/2020 by the petitioner and respondents. Therefore,
the present petition is filed and it is prayed to declare the adoption
ceremony held on 10/10/1999, regarding adopting child Mangesh by
the petitioner with his deceased wife, as valid and legal.
5. In support of his petition, petitioner has filed documents like
Ration Card, Aadhar Card, Death Certificate of his wife, Birth
Certificate of Mangesh and copy of adoption deed dated 23/1/2020.
The consent affidavit is also filed on record. The petitioner has filed the
evidence affidavit at Exhibit 4 and evidence affidavit of Mrs.Seema Jain
at Exhibit 6 and has filed the evidence closing pursis at Exhibit 8. The
respondents have filed the evidence closing pursis stating that they are
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supporting the case of petitioner and they do not want to lead the
evidence.
6. Mr.D.K.Jain learned advocate for petitioner has filed the written
arguments on record, so also I heard Mr.Jain. Mr.Jain has submitted
that on the fourth birthday of Mangesh i.e. on 10/10/1999 the
petitioner and his deceased wife accepted the custody of Mangesh as
the respondent no.1 and 2 handed over the custody of Mangesh to
them in adoption, in presence of family members. Mr.Jain has
submitted that the proper adoption deed was not drafted at that time
and adoption was recorded on a plain piece of paper which was duly
signed by both the parties and witnesses. Mr.Jain has submitted that as
per the legal advice, the petitioner got an adoption deed reciting the
past adoption deed dated 10/10/1999 and the fresh adoption deed was
executed on 23/1/2020. Mr.Jain has submitted that there is sufficient
evidence on record to allow the petition. In support of his contention
Mr.Jain has heavily relied upon the decision in Vishwanath Ramit
Karala Vs. Rahibai Rahmi Karala AIR 1931 Bom 105 wherein the
Hon'ble High Court has observed that:
" Applying these principles to the present case it will be
seen that the adoption deed is not the expression or
declaration of will by which the right is constituted but
merely a recital of an act which has already taken place. As
I have already pointed out, it is not the adoption deed by
which the rights of the adopted son are created but the
adoption itself and any wording in the adoption deed
cannot either create or limit any rights which the adopted
son gets by his adoption."
7. I have duly considered the above submissions of Mr.Jain, so also,
I have gone carefully through the evidence and documents on record
and abovesaid cited case.
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It is important to mention here that as per the provisions of
Section 10 (iv) of the Hindu Adoption and Maintenance Act, a minor
who has not completed the age of 15 years can be adopted. Section
10(iv) of the said Act reads as under:
"
10(iv) he or she has not completed the age of fifteen years,
unless there is a custom or usage applicable to the parties
which permits persons who have completed the age of fifteen
years being taken in adoption."
8. In the case in hand, admittedly, the age of Mangesh is more than
15 years, as per the contention of the petitioner himself the date of birth
of the said Mangesh is 10/10/1995 and the present petition is filed on
24/2/2020. There is no whisper in the petition that there is any custom
or usage applicable to the parties which permits them to take the person
in adoption, who has completed the age of 15 years. On this legal
ground alone, the petition is not maintainable.
9. Apart from the above legal hurdle in the maintainability of the
present petition, it is important to mention here that the petitioner has
not produced the plain paper on which the deed of alleged adoption
dated 10/10/1999 was written. So also, the petitioner has not disclosed
name of witnesses who were present. Mere contention of the petitioner
that the said paper is not traceable and therefore, they have recited the
said contents in the adoption deed dated 23/1/2020 is absolutely not
acceptable.
It is important to mention here that the petitioner has filed copy
of his ration card on record in which the name of alleged adopted son is
not appearing. Had it been a fact that the petitioner adopted Mangesh as
a son, then his name should have been appeared in the Ration Card as a
member of petitioners family. There is no explanation from the side of
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petitioner as to why the name of Mangesh is not there in ration card. It
is important to mention here that as per the documentary evidence on
record the name of Mangesh is mentioned in Aadhar Card as Mangesh
Govind Nevrekar and not as the son of petitioner. So also, it appears that
from the School Leaving Certificate dated 31/5/2012 issued by the
Wilson High School, Girgaum, Bombay, that the name of Mangesh is
written as "Nevrekar Mangesh Govind". So also, from the School Leaving
Certificate issued by Lilavati Lalji Dayal High School and Junior College
of Commerce dated 10/6/2013, the name of Mangesh is written as
"Nevrekar Mangesh Govind". Had it been a fact that petitioner adopted
to Mangesh on his 4th birthday, why his name is not enrolled as the son
of petitioner in school record and other, no explanation is put forth.
10. It is necessary to mention here that welcoming of a new member
in the family is a great event and the adoptive father generally give his
name to the adoptive son or daughter, immediately after adoption but in
the matter surprisingly Mangesh completed his education with the name
of his biological father and not as a son of petitioner. Simply saying that
due to ignorance in the birth certificate the name of Mangesh was
continue to remain as the son of Govind Nevrekar, absolutely not
acceptable, because the petitioner is not the layman, he was
Development Officer in LIC and was well educated. Had it been a fact
that the petitioner adopted to Mangesh long back in the year 1999, then
it was expected from the side of petitioner as well as respondents to
produce some documentary evidence to show that Mangesh was treated
as a son of petitioner but they have failed to do so and the reason best
known to them. There is absolutely no cogent, reliable, and clinching
evidence on record to the satisfaction of this Court to come to the
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conclusion that Mangesh was adopted by the petitioner as a son, as
alleged. In my considered opinion, there is something fishy behind the
curtain which the respondents particularly do not bring to the notice of
this Court. There is absolutely nothing on record on which basis the
Court can take the judicial notice that said Mangesh was adopted by
petitioner at any point of time.
11. In short, having regard to the facts of the case, evidence and
circumstances on record as discussed above, so also, considering the said
fact Mangesh is more than 15 years old, the petition needs to be
dismissed as the alleged adoption is not for the welfare and wellbeing of
a minor. In the result, following order:
O R D E R
1. Adoption Petition No.65/2020 is hereby dismissed.
2. Adoption Petition No.65/2020 is thus disposed of accordingly.
Date : 01.12.2020 (M.M.UMAR)
Judge
City Civil Court,
Gr. Bombay.
Dictated on : 01.12.2020
Typed on : 01.12.2020
Signed by HHJ. : 02.12.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
2.12.2020 12.40 p.m. Mrs. Jyoti Mane
Name of the Judge HHJ Shri MM Umar (CR No.22)
Date of Pronouncement of
Judgment/Order.
01.12.2020
Judgment/order signed by P.O on 02.12.2020
Judgment/order uploaded on 02.12.2020
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