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Judgments of Supreme Court of India and High Courts

Smt Beulah Babu vs Sri Vincent Abraham on 4 April, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4TH DAY OF APRIL 2018

BEFORE

THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN

WRIT PETITION No.53264/2017 (GM-FC)

BETWEEN:

SMT. BEULAH BABU,
D/O. D. BABU,
AGED 35 YEARS,
R/A NO.21, BEERESWARA BUILDING,
1ST FLOOR, 11TH CROSS, SEETHAPALYA,
OIL MILL ROAD,
BANGALORE-560 084. … PETITIONER

(BY SRI R. A. DEVANAND, ADVOCATE)

AND:

SRI VINCENT ABRAHAM,
S/O BALRAJ @ SRI AROKIA NADHAN,
AGED 45 YEARS,
R/A NO.121/10, 10TH CROSS,
BHARATHIYAR ROAD, R.S. PALYA,
BANGALORE-560 033. … RESPONDENT

(BY SRI KISHORE KUMAR S., ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE V ADDL. PRINCIPAL FAMILY COURT JUDGE,
BANGALORE PASSED IN G W.C.NO.350/2016 ON 7.10.2017 WHICH
IS PRODUCED AS ANNEXURE-D BY ALLOWING BY WRIT PETITION.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER

The petitioner is aggrieved by the order dated 7.10.2017,

passed by the V Additional Principal Judge, Family Court,

Bengaluru, whereby the learned Family Court has dismissed the

petitioner’s application under Section 25 of the Guardians and

Wards Act, 1890, for seeking the custody of the minor child,

Danny, from the respondent.

2. Briefly the facts of the case are that the petitioner

claims that initially in 2010, she was married to one Mr. D. Vijay,

according to the Christian rites and rituals, at Chennai.

Subsequently, she was divorced by her husband. Thereafter, the

respondent started taking interest in her; they decided to have

live-in-relationship, as the respondent was already married to

one Ms. Lubana. According to the petitioner, out of the live-in-

relationship, on 11.8.2015, Danny was born. Moreover,

according to the petitioner since the respondent happened to be

a Clergy serving in two Churches in Bengaluru on the one hand,

and was an industrialist on the other hand, fearing that his

reputation may be tarnished in public, he kept the petitioner at a

factory run by him. Till 2016, he continued to look after her by
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providing her money, and means to sustain herself, and the

child, Danny. However, after December 2016, he stopped giving

her any allowances; he has thrown her out of the residential

accommodation. Although, initially, he would send Danny to

spend time with her, but now, even that interaction has stopped.

Hence, her application for seeking the custody of the child. The

respondent filed his objections, and denied the complete

averments made by the petitioner. After hearing both the sides,

the learned Family Court dismissed the application, by the

impugned order dated 7.10.2017. Hence the present petition

before this Court.

3. Mr. R. A. Devanand, the learned counsel for the

petitioner, has vehemently contended that the learned Family

Court has erred in relying on the Memorandum of Understanding

(‘MOU’ for short), dated 7.3.2015, entered between the

petitioner and the respondent, in order to conclude that the

petitioner was merely a surrogate mother, who had agreed to

bear the respondent’s child, and to hand over the custody of the

child, once the child was born. According to the learned counsel,

the legality of the said MOU is under challenge before a learned
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Civil Court. Therefore, merely because the MOU was submitted

by the petitioner, the same cannot be relied upon by the learned

Family Court in order to deny the custody of the child to the

petitioner.

4. On the other hand, Mr. Kishore Kumar S, the learned

counsel for the respondent, pleads that till the MOU is set aside

by the learned Civil Court, the validity of the MOU cannot be

doubted. Under the MOU, dated 7.3.2015, the petitioner had

agreed that since the respondent could not get a child from his

lawful wedded wife, the petitioner had agreed to bear the child,

provided she was paid `2,00,000/-. The said amount was duly

paid to the petitioner, by cheque bearing No.414744, dated

7.3.2015. Hence, the petitioner is none other than a surrogate

mother. Moreover, under the MOU, she had clearly stated that

she will neither ask for the custody of the child in order to make

any claims over the child, nor over any property, through the

child. Thus, the learned Family Court was justified in relying on

the said MOU in order to dismiss the petitioner’s application.

Hence the learned counsel has supported the impugned order.
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5. Heard the learned counsel for the parties, and perused

the impugned order.

6. Although the MOU may be under challenge before the

learned Civil Court, but the fact remains that the MOU has not

been declared as null and void, and has not been set aside by

the learned Civil Court. Therefore, the MOU continues to be a

valid contract that continues to exist between the parties.

According to the terms of the MOU, the petitioner had agreed to

bear the respondent’s child, and to accept a consideration of

`2,00,000/-, for the said act. According to the MOU, she had also

given up all the rights over the child. The MOU has been

submitted by the petitioner herself before the learned Family

Court. Thus, the petitioner cannot deny the existence of the

MOU. Therefore, the learned Family Court was justified in

accepting the MOU, and in concluding that under the MOU, the

petitioner is unjustified in claiming the custody of the child.

7. A bare perusal of the impugned order clearly reveals

that the learned Family Court has threadbare discussed the

documentary evidence which was produced by the petitioner

herself, has drawn legally valid conclusions, and has given
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cogent reasons for dismissing the petitioner’s application. Hence,

this Court does not find any illegality or perversity in the

impugned order. Therefore, the writ petition is devoid of any

merits; it is, hereby, dismissed.

Sd/-

JUDGE

MD

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