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NC: 2024:KHC-D:6936
WP No. 102673 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
TH
DATED THIS THE 30 DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO.102673 OF 2024 (GM-FC)
BETWEEN:
1. SHRI. MADHU S/O. YALLAPPA NAYAR
AGE: 43 YEARS, OCC: PRIVATE WORK,
R/O: NO.22, MALLIKARJUN NAGAR,
SAVADATTI ROAD, DHARWAD-580006.
2. SHRI. RAJU S/O. YALLAPPA NAYAR
AGE: 44 YEARS, OCC: BUSINESS,
R/O: GANAG ELITES (APARTMENT),
BESIDE DOMINO'S PIZZA,
BEHIND APOLO PHARMACY,
TOL NAKA, P.B.ROAD, DHARWAD-580008.
3. KUMAR. NANDAKESHAV @ ADHRIT
S/O. MADHU NAYAR,
AGE: 07 YEARS, OCC: STUDENT,
R/O: GANAG ELITES (APARTMENT),
BESIDE DOMINO'S PIZZA,
BEHIND APOLO PHARMACY,
TOL NAKA, P.B.ROAD, DHARWAD-580008.
Digitally signed
by SHIVAKUMAR
HIREMATH
Location: HIGH
(SINCE PETITIONER NO.3 IS MINOR,
COURT OF
KARNATAKA
HE IS R/BY HIS ADOPTED FATHER
DHARWAD
BENCH
SHRI. RAJU S/O. YALLAPPA NAYAR
I.E.PETITIONER NO.2)
…PETITIONERS
(BY SRI.R.H.ANGADI, ADVOCATE)
AND:
1. SHRI. VEERAPPA S/O. BASAPPA KADAMPUR
AGE: 76 YEARS, OCC: RETIRED.
2. SMT. SULOCHANA W/O. VEERAPPA KADAMPUR
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
TH
BOTH ARE R/O H.NO.179, 5 NAGAGR,
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WP No. 102673 of 2024
C.B.NAGAR, NEAR ARAVINDO SCHOOL,
DHARWAD-580007.
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, KINDLY ISSUE A
WRIT IN THE NATURE OF CERTIORARI OR QUASH THE IMPUGNED
ORDER ON IA NO.6 FILED U/SEC.12 OF THE G AND W ACT, AND
I.A.NO.7 FILED U/SEC 151 CPC, DATED 24.04.2024, IN G AND WC
NO.10/2023, BY THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD
VIDE ANNEXURE-L, AND CONSEQUENTLY DISMISS IA NO.6 DATED
16.03.2024, FILED BY RESPONDENTS NO.1 AND 2 U/SEC.12 OF THE
G AND W ACT, AND ALLOW I.A.NO.7, DATED 01.04.2024, FILED
U/SEC 151 CPC, FILED BY THE PETITIONERS BY ALLOWING THIS
WRIT PETITION, TO MEET THE ENDS OF JUSTICE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing the
order dated 24.04.2024 and order dated 16.03.2024 in G
& W No.10/2023 (Annexure-L), passed by the Principal
Judge, Family Court, Dharwad, allowing I.A.No.6 in part
and rejecting I.A.No.VII filed under Section 151 of CPC by
the respondent No.2 therein.
2. The relevant facts for adjudication of this writ
petition as averred in the writ petition are that, a child by
name Kumar Nandakeshav @ Adhrit S/o. Madhu Nayar
was born to Smt. Anupama W/o. Madhu Nayar and Sri.
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Madhu S/o. Yallappa Nayar, (petitioner No.1 herein) as per
the birth certificate produced at Annexure-B.
3. It is stated that, wife of said Madhu i.e. Smt.
Anupama died on 05.08.2020 as per the death certificate
produced at Annexure-C. It is further averred by the
petitioners in the writ petition that, after the death of his
wife, no person was taking care of his minor son Kumar
Nandakeshav @ Adhrit and accordingly, in the in the
interest of child, the petitioner No.1 has given his son in
adoption to his elder brother by name Sri. Raju S/o.
Yallappa Nayar. It is further stated in the writ petition
that, the ceremony of adoption was held on 14.04.2021 in
the house of Sri. Raju Nayar, in the presence of family
members. It is also contended by the petitioners herein
that, the registered Adoption Deed was executed on
10.08.2021, and therefore, it is stated in the writ petition
that the respondent Nos.1 and 2 being the maternal grand
parents of the child, have no right to secure the custody of
the child. It is also stated in the writ petition that, the
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WP No. 102673 of 2024
respondent Nos.1 and 2 herein have filed G & W
No.10/2023 under Sections 7 and 25 of the Guardian and
Wards Act, 1890, on the file of the Principal Judge, Family
Court, Dharwad, challenging the Adoption Deed dated
11.08.2021 (Annexure-E). After service of notice, the
petitioners herein have entered appearance and filed
statement of objections to the main petition. In the
meanwhile, the respondents herein have also filed
application under Section 12 of the Act, seeking temporary
custody of the Ward (Petitioner No.3) as per Annexure-G.
The said application was contested by the petitioners
herein by filing statement of objections produced at
Annexure-H. The trial Court, after considering the
applications filed by the respondents herein seeking
temporary custody of the child and the application in
I.A.No.7 filed by the petitioners herein, urging
maintainability of the writ petition, by order dated
24.04.2024, allowed I.A.No.VI in part, however, dismissed
I.A.No.VII. Feeling aggrieved by the same, the petitioners
herein have presented this writ petition.
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4. Heard Sri. R.H.Angadi, learned counsel for the
petitioners.
5. It is submitted by the learned counsel
appearing for the petitioners that, G & W No.10/2023 filed
by the respondents herein itself is not maintainable on the
ground that, the petitioners therein have no right to claim
custody of the child and in this regard, he submitted that,
as the petition itself is not maintainable before the trial
Court, whereas the challenge has been made to the
Adoption Deed which is said to have been executed by the
petitioners herein, inter-se and therefore, the learned
counsel for the petitioner contended that, the order
impugned is a non est and requires to be set aside.
6. Having heard the learned counsel appearing for
the petitioners, I have carefully examined the finding
recorded by the trial Court in respect of I.A.Nos.VI and
VII. Undisputable facts are that, the Ward – Kumar
Nandakeshav @ Adhrit S/o. Madhu Nayar is the son of the
petitioner No.1. Wife of the petitioner No.1 died on
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05.08.2020 and thereafter, it is stated in the petition that,
the Ward Kumar Nandakeshav was given in adoption to
the petitioner Nos.2 and 3 as per the registered Adoption
deed dated 10.08.2021. respondents herein are the grand
parents of the Ward through mother side.
7. The respondents herein have filed G & W
No.10/2023 before the trial Court challenging the Adoption
Deed dated 10.08.2021. The prayer made in the G & W
No.10/2023 is culled out as under:
(a) That the Hon’ble Court be declared that the
adoption deed No.DWR-4-00106-2021-22 CD No.DWRD
1054 executed by the respondent No.2 null and void and
st
same is not binding on the 1 respondent.
(b) Kindly be direct the respondent No.3 to hand over
the custody of the respondent No.1 by name Adhrit in
favour of petitioners by allowing the petition.
(c) The right of the Amendment of petitioner be kindly
by reserve in favour of the petitioners as and when
necessary.
(d) Any other reliefs deemed fit by this Hon’ble Court
be kindly be granted in favour of petitioners in the
interest of justice and equity.
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8. On careful examination of the relief sought for
by the respondents herein in the aforementioned petition,
the respondents herein have sought for declaration,
challenging the adoption deed dated 10.08.2021. The
enquiry is said to be conducted in the suit and thereafter,
the finding recorded by the trial Court is just and proper as
appropriate issue is required to be framed in this regard.
9. In that view of the matter, the respondents
herein being the grand parents of the child – Kumar
Nandakeshav @ Adhrit S/o. Madhu Nayar, I am of the
view that, the finding recorded by the trial Court at
paragraph Nos.9 and 10 is just and proper and I do not
find reasons for interference under Article 227 of the
Constitution of India. Accordingly, the writ petition is
dismissed being devoid of merits.
Sd/-
JUDGE
SVH
List No.: 1 Sl No.: 16