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habeas corpus by wife for child Custody

Supreme Court of India



BENCH:G.B.Pattenaik, U.C.Banerjee


Leave granted.

These appeals by grant of special leave are directed
against the judgment dated 11.3.99 by the Division Bench of
the Delhi High Court in a writ of habeas corpus filed by the
natural mother of a young girl, named Akansha. The
undisputed facts are that Priyanka had married Amit in
April, 1993. Out of their wedlock, two girl children
Akansha and Jayanti were born. The husband of Priyanka
was a Preventive Officer in the Customs Department of the
Government of India. The said Priyanka filed the petition
for issuance of writ of habeas corpus alleging therein that
her daughter, Akansha is in illegal custody of Rajiv, the
elder brother of her husband and the said Akansha should be
produced in Court and she should be given the custody of the
child. Earlier to the filing of the aforesaid petition in
Delhi High Court, the said Priyanka had filed an application
in a writ of habeas corpus in Rajasthan High Court at Jaipur
in which notice had been duly issued and the State of
Rajasthan had filed an affidavit stating therein that
Akansha and her younger sister, Jayanti had been given in
adoption by the natural parents to Rajiv and his wife and a
registered deed of adoption has been executed and the
children are staying in Bombay with her adoptive parents and
as such the High Court of Rajasthan has no jurisdiction to
entertain the habeas corpus petition and to issue directions
therein. In Delhi High Court, Priyanka had challenged the
validity of the deed of adoption said to have been executed
by her and her husband, inter-alia on the ground that the
said documents were fraudulently got executed and on the
statement of her husband, she has signed those papers
thinking them to be in relation to some property. Pursuant
to the notice issued by the Delhi High Court, the adoptive
father appeared and contested the proceedings, inter-alia on
the ground that Akansha has been given in adoption by the
natural parents by executing a registered adoption deed and
from the date of said deed, Akansha is staying with the
adoptive parents and the adoptive parents are in lawful
custody of the child and consequently the question of
issuing a writ of habeas corpus does not arise.
By the impugned judgment, the High Court examined the legality of
the adoption deed to find out whether the custody of Akansha
should be with the natural mother or with the adoptive
parents. The High Court came to the conclusion that the
deed of adoption does not suffer from any illegality but the
said alleged adoption does not inspire confidence. The High
Court also came to the conclusion that the possibility of
signatures of the natural mother on the adoption deed of
Akansha were taken by practicing fraud and
misrepresentation, as alleged cannot be ruled out.

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According to the High Court, prima facie it is not
acceptable that the young mother would give in adoption her
daughter, aged three years. The High Court also considered
the question of performance of ceremonial gift and came to
hold that it can be presumed that the ceremonial gift has
not been performed. Ultimately, the High Court directed
that the custody of the daughter, Akansha shall remain with
the natural mother till appropriate Civil Courts in
appropriate civil proceedings decide otherwise.
It is this direction of the Delhi High Court in a habeas corpus
petition which is assailed in these appeals, one filed by
the adoptive father, the other filed by Akansha through the
adoptive father and the third filed by the natural father.
Ms Pinky Anand as well as Mr. D.N. Goburdhan, learned
counsel assailing the impugned order of the High Court
contends that in a petition for habeas corpus, the High
Court was not entitled to examine the legality of the
adoption deed and come to his own conclusion on mere
surmises and conjectures even ignoring the statutory
presumption of a registered adoption deed available under
Section 16 of the Hindu Adoption and Maintenance Act.
According to them, the natural mother having filed a
petition for habeas corpus in Rajasthan High Court was not
entitled to file a separate application in Delhi High Court
which tantamounts to forum haunting and the High Court of
Delhi committed gross error in entertaining the said
application and passing the impugned direction.
According to the learned counsel appearing for the appellants, the
natural mother is not an illiterate lady and having signed
the deed of adoption knowing contents thereof was not
entitled to wriggle out from the same by making frivolous
allegations. Ms Kamini Jaiswal, learned counsel appearing
for the natural mother on the other hand contends that the
circumstances under which the mother was deprived of the
responsibilities and duties of taking care of her own
children shocks the normal conscience and under the
circumstances the High Court was justified in issuing the
impugned direction.
Before examining the correctness of the rival submissions, we would like to state one fact that in
view of the allegations and counter allegations made, we had
called upon the natural mother to produce the child in our
Chambers to ascertain the views of the child and pursuant to
the said direction, the child was produced in our Chambers.
Though the child is quite young and is, therefore, not in a
position to express any positive view, on questioning her we
have got the impression that the child would like to stay
with her natural mother and does not want to be with the
alleged adoptive parents. This is borne out from the fact
that even in our Chambers when the adoptive parents wanted
to talk, the child started crying and did not want to talk
to them even. Though Mr. D.N. Goburdhan vehemently
submitted that this is the result of tutoring but we are not
persuaded to accept the said submission. We could gather,
by putting questions to the child, in the absence of the
natural mother, adoptive parents and the lawyers that
Akanshas natural instinct is to continue with the natural
mother. We have no hesitation to come to the conclusion
that the High Court of Delhi in a petition for habeas corpus
was not entitled to examine the legality of the deed of
adoption and then came to the conclusion one way or the
other with regard to the custody of the child.
The High Court has lost sight of the fact that the petition was one
for issuance of writ of habeas corpus and not for custody of
the child. Then again, Mr. D.N. Goburdhan and Ms Pinky
Anand were justifed in their submissions that the mother
having filed the petition for habeas corpus in Rajasthan
High Court, was not entitled to invoke the jurisdiction of
the Delhi High Court.
That apart in the manner in which the High Court of Delhi appears to have issued direction to the
SHO of Lajpat Nagar Police Station to produce the child
indicates that the entire episode is by way of stage
maneuvering. We, therefore, find sufficient force in the
submissions of learned counsel for the appellants. But
having had the opportunity of ascertaining the views of
young Akansha, as already stated, and in view of our
conclusion that the child does not want even to talk to
adoptive parents, we are not inclined to interfere with the
direction of the Delhi High Court allowing the custody of
Akansha to the natural mother until appropriate decision of
competent forum is obtained with regard to the validity of
the adoption deed as well as the custody of the child in
question. We accordingly dismiss these appeals.
We,however, make it clear that any observation made by Delhi
High Court in the impugned judgment with regard to the
validity of the registered deed of adoption or with regard
to the suitability of the custody of Akansha will not be
binding in the pending proceedings.

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