JUDGMENT
K.J. Vaidya, J.
1. Unmarried Chetnaben @ Artiben, by this petition under Article 226 of the constitution of India has moved this Court, inter alia praying for issuance of the writ of Habeas Carpus in particular against the respondent No. 3 Mistry Ganpatbhai bakshiram who happens to be her father directing him to produce before this Court her minor son Ravi (seven months old) born out of extra-marital relationship with one Vithal and hand over his possession to her.
2. On going through the petition, in substance the petitioner has narrated her history with regard to her coming into contact with one Vithalbhai Panchal; who though married was deserted by his wife, and about her subsequent companionship with him and out of the said relationship giving birth to illegitimate son Ravi on 29-1-1995 at Ahmedabad. In the petition, his has also further narrated about the harassment meted out to her and her companion Vithal by the respondent No. 3 and how ultimately after the birth of Ravi forcibly took him away from her!!
3. Further still, according to the petitioner though she had repeatedly enterated her father to give back her son Ravi, but that was all in vain. It is under these compelling circumstances that the petitioner has been constrained to move this Court praying for a writ of Habeas Corpus, as stated above in para 1 of this judgment.
Earlier, when this matter came up for admission before this Court on 23-8-1995, notice was issued making it returnable on 31-8-1995 directing the respondent No. 3 to produce Ravie before the Court on the said returnable date at 11-00 a.m.
4. Addordingly, in resonse to our said notice, respondent No. 3 appearing before us has filed reply-affidavit denying all the allegations levelled against him in the petition, counter-alleging that the same was false, frivolous, vexatious and got-up one and that there was indeed no truth or substance in it. Further, according to respondent No. 3, on the contrary, it is his apprehension that this petition has been filed against him under the fear and pressure and at the instance of Vithal Panchal who is in illicit relation with the petitioner his daughter Chetna. In fact, according to the respondent No. 3 on 14th July, 1995, petitioner herself had voluntarily handed over her child to Mahipatram Ashram and for that one declaration was also filed before the said authority wherein it is specifically mentioned that because of certain social reasons she was not interested in retaining the custody of her son Ravi, and therefore, she was handing over him to said Ashram which is run by Government. Not only that but the petitioner, in her said application has also further agreed and empowered the Government to do whatever it wanted to do for the purpose of taking care of her minor son, and that she will not take any objection to it. Under the circumstances, it was requested by respondent No. 3 that if this Court was still keen for production of child Ravi then in that case Mahipatram Ashram may also be joined as necessary party to this proceedings and in turn be directed to produce the original record so that the real truth can come before this Court, and for that purpose, may also join Superintendent of the Remand Home as a party to this proceedings, as from documentary evidence coming from the said authority before this Court, it could be pointed out as to how and when they came in possession of Ravi son of the petitioner, and in turn how he came to be adopted by some person !!
5. In view of the aforesaid reply-affidavit by the respondent No. 3, Mr. Jappi, the learned Advocate appearing for the petitioner sought permission to amend the cause title by adding aforesaid two parties as newly added respondent Nos. 4 and 5 respectively. Permission was granted and accordingly, notices were issued to the said newly added respondents, making it returnable on 1-9-1995, directing them to remain personally present before this Court alongwith the record of the case and the minor child of course.
6. In response to the aforesaid notice, Shri Deepak B. Vaishnav, Superintendent, Remand Home, Ahmedabad and Ms. Surbalaben M. Vyas, Honorary Director of Mahipatram Ashram, respondent Nos. 4 & 5 respectively have appeared before us alongwith Ravi. It was submitted before us by the said respondents that the custody of Ravi was taken strictly in pursuance to the order passed by the Juvenile Court and the authorities of Mahipatram Ashram in their turn have already given custody of Ravi to Mr. & Mrs. D.R. Shah, power of attorney holder for Mr. Atulbhai and his wife Mrs. Shilpaben Shah, a couple hailing from America by way of adoption. In this view of the matter, both the aforesaid respondents were directed to file a detailed affidavit right from the inception till today on or before 6-9-1995. So far as the interim custody of Ravi was concerned, having regard to the peculiar facts and circumstances of the case, pending admission, it was directed to be kept in custody of respondent No. 4 – Director of Mahipatram Ashram, with the permission to petitioner to stay alongwith the child if she so desired. Thereafter, for one reason or the other, at the request of parties, the matter was adjourned to today.
7. Today, when the matter was called out, Mr. Dilipbhai R. Shah Power of Attorney holder for Atulbhai R. Shah and Mrs. Shilpaben Shah has filed a purshis stating therein that though they were lawfully handed over the custody of Ravi by the competent authorities, however, since the petitioner who happens to be the real mother, claims her flesh, blood and bone namely – Ravi back, they have indeed no objection, any interest in frustrating her prayer by not returning the custody of adopted son Ravi back. Smt. Shilpaben Shah is also personally present before the Court today. She has also shown her magnanimity and grace quite in abundance in appreciating and valuing the heart-bum of real mother, i.e., the petitioner and the unfortunate conspiracy of circumstances against her wherein she stands probably victimized !! Smt. Shilpaben accordingly indeed deserves a special compliments from this Court for the simple reason that (as reported) though she specially flew all the way from the United States of America to India holding her breath in excitement, with her heart beating fast, overflowing with unprecedented joy and hands full of the bags and baggages filled with precious gifts, clothes, toys and what not to satisfy her innermost insatiable urge to be a mother and that too to be the mother of an abondened illegitimate child by legally adopting it !! And indeed quite rightly as believed by some that no women feels her life so fulfilled and flowered, beautiful, blossomed and blessed till ultimately she conceives and delivers the child !! This of course is a matter quite individualistic of attitude, beliefs and mood of the concern women !! This indeed gives us an absolute idea as to with what rosy dreams, expectations, warmth, love and enthusiasm she rushed to Ahmedabad and still despite seeing her dream fast fading away in matter of moments before her own eyes with real mother claiming back Ravi, and yet, with what an exemplary magnanimity and grace without slightly – even, being obsessed by feeling of possessiveness taking the technical plea that she was lawfully given Ravi in adoption and that the same has become final and therefore, the door of the real mother was closed forever thereafter !! Of course, it is indeed quite a disputable question whether this stand would have ultimately succeeded taking into consideration the case of the petitioner that she knew nothing about the child being taken to the Remand Home and thereafter forwarded to Mahipatram Ashram!
8. According to the petitioner, she was kept in darkness when her signature was obtained by respondent No. 3 her father – a traditional orthodox father worried about the most uncharitable social comments from some by pocrates about illegitimate child of the petitioner-daughter in house under compulsion had handed over Ravi to the Remand Home. Of Course, it was pointed out by the respondent No. 3 that the petitioner had remained personally present before the Juvenile Court, which the petitioner has denied. Anyway, since Mrs. Shilpaben having taken quite sporting straightforward, generous, positive and graceful attitude in favour of the petitioner and thus ultimately there being a happy and amicable outcome to the vexed problem, we are indeed not called upon to enter into the said controversy. Taking into consideration the fact that Smt. Shilpaben who has personally remained present before this Court and voluntarily agreed to give up her right to the adopted child in favour of the petitioner, nothing further requires to be done by this Court except to hand over Ravi to the petitioner. In view of the aforesaid circumstances, this petition stands disposed of accordingly.
9. The fact that Smt. Shilpaben came to India specially for the purpose of adopting a child, an unfortunate child with social slur of illegitimacy having lawfully adopted the same, and yet at the same time, without taking any technical and sticky stand about her right, the magnanimity with which she has agreed to part with and hand over Ravi to the petitioner, of course with her eyes quite wet with drop of tears bejewelling corners of her eye at the time of handing over, obliges us to wish her all the best and further pray that her visit to India for a child shall not fail.
10. We have indeed no doubt that the grace, goodness, kindness, sacrifice and magnanimity with which she has willingly handed over possession of Ravi to petitioner, the real mother, will unquestionably echo-back in near future by the Supreme Power ruling the world before she enplanes back to the United States of Amercia with another sweet child in her hands in her laps !! The arithmetic of life of good, better, and the best fortune or the bad, worse, worst and the worst future is very simple. It is an ordinary law of the nature that every substance has a shadow, every action has consequential reaction, every seed when sown, sprouts, bears fruit, grains, etc. This supreme, universal and natural exceptionless, irreversible law and consequential decree of fate non-appealable too executed by all powerful super-nature with a warrant upon the time to execute it at a proper time stands undoubtedly as it is without any discrimination !! In other words, future is merely a mirror. It reflects that face, image and action of a person concerned which he holds in front at the time of seeing in the mirror. A weeping face cannot expect a reflection of the smiling face. An angry face cannot expect a reflection of wisdom. If one wants one’s fortune to be bright, peaceful, prosperous and full of joy, the concerned one is supposed to behold his/her face, action accordingly. In short, whatever one thinks, feels, does invariably return back in course of the time !! This is how an axiomatic wisdom is coined, viz., “Do unto others as you wish to be done by”. Once this principle is clearly understood to the heart-core and practised, no one shall have a time and reason to regret and suffer !! When any person aspires and wants anything, it is rightly said that “first deserve then desire”. We in aforesaid background must say that Smt. Shilpaben indeed deserves her desire for child to be fulfilled. We accordingly wish her good luck !! In case, she within the parameters of the law, ultimately finds any adaptable baby, the competent authority shall decide the said application within the reasonable time with all promptitude and for this purpose Smt. Shilpaben would once again apply afresh and we are sure all concerned involved would do their best to do needful in assisting her.
11. We specially thank the Superintendent, Remand Home, Khanpur, Ahmedabad and Ms. Surbalaben N. Vyas, Hon. Director, Mahipatram Ashram, Ahmedabad, in responding to our notice and carrying out the orders whatever we have passed.
12. While concluding this judgment, a thought, nay a feeling not only even that but the strong reaction just flashes across in our mind making a grievance whether anyone would be justified in referring minor son Ravi as a illegitimate child merely because the petitioner was not married with Vithal and out of their extra-marital relationship child was born? The reason is, the dictionary meaning of the word “illegitimate” is ‘born of parents not married to each other.’ In other words ‘bastard’ which means (according to dictionary meaning) ‘an unpleasant or disputable person’ !! Now as we know the child comes into the world out of the Divine Rule and Law of the Nature !! If the child comes into the world out of the Divine rule and law of the nature as a child, be it out of lawful wedlock or otherwise, then indeed what right the Society has got to discriminate in differently labelling them as “legitimate” and “illegitimate” !! At its whims and caprice because it chooses to so describe for the purpose of earmarking the civil right!! Whether child is born out of the relationship between male and a female not lawfully wedded or the child born of the lawful married life there is indeed no difference or distinction between the ultimate Creator and creation. They stand on the same footing as the ultimate Creator i.e., GOD and the resultant creation, namely, child in both the cases is the same. Instead of addressing the child as the illegitimate child, it can as well be said to be a child born of not married couple but you cannot term him as an “illegitimate”. To condemn or abuse any child as illegitimate or bastard is too serious a thing and in a way also abusing and condemning the Creator, i.e., GOD itself. In fact, in order to readily test, appreciate the gravity and seriousness of meaning of the word “Illegitimate” or “bastard”, one may address any grown-up in the Society with the said two words, and see for himself the answer, reaction and reward he gets back for the said abuse !! This Court was referred ‘Ravi’ son born out of the relationship between petitioner Chetna and Vithal (already married with another not divorced), her friend, companion, paramour, whatever he is as ‘illegitimate’, Quite true that the word ‘illegitimate’ is used for earmarking the civil rights between the legitimate child and illegitimate child. For law, lawyers and interested litigants the use of word ‘illegitimate child in its context may be good, useful for the said concerns. But in such types of cases to address the child- ‘image of innocence and purity’ as illegitimate (!) is something too harsh, too unjust, too uncivilized to them and atleast all right thinking persons should refrain from addressing it as illegitimate child. Accordingly, at once this Court would like to correct a gross mistake of grossly disrupting the innocent child Ravi as ‘illegitimate’ !! What fault, crime, sin the minor Ravi has committed to be addressed as ‘illegitimate’? Is it not its defamation for no fault of it? Whatever be the case, the child is a child whether it is born out of the lawful wedlock of husband and wife or out of any other extra-marital sex relationship between male and the female (married and/or unmarried). Under the circumstances, we have indeed no business to slur or address even a child as ‘illegitimate.’
13. Frankly speaking, when such child grows up and comes to identify and knows himself as ‘illegitimate child’ what psychological trauma it may cause to it, is indeed too difficult to conceive!! For that what inferiority complex it would be suffering or made to suffer from the slur of illegitimacy cruelty coined by the orthodox society of ours. Child gets conceived in the womb of the female and takes shape in form of a human being as per the law and rules of nature. If that is so, no one indeed has any right to address a child as ‘illegitimate’ even if not out of the lawful wedlock. We believe that none indeed has any business to address, abuse, condemn any child as ‘illegitimate’ merely because it is born out of the extra-marital sex relationship between male and female. It is indeed a natural, personal legal right of the child not to be abused and defamed by prefixing it with ‘illegitimate’. Once again, we believe that child is a child and we have indeed no right to address it as ‘illegitimate’ and impose slur upon him still he grows and conducts himself in a manner justifying any other slurs to his image.
14. At this juncture, we before our own eyes have seen Smt. Shilpaben who wanted to be mother of Ravi, gracefully handing over Ravi to her real mother the petitioner. What an amazing turn of fate? Whose? Of the petitioner? Of Mrs. Shilpaben? Or of minor Ravi? What it is? Answer lies locked, concealed in future to come !! This petition stands disposed of accordingly. Rule made absolute.
15. Office is directed to forward a copy of this judgment to – (i) Superintendent, Remand Home, Khanpur, Ahmedabad; (ii) Hon. Director, Mahipatram Ashram, Ahmedabad and as requested to: (iii) Smt. Shilpaben A. Shah, C/o. Dilipbhai Ramanlal Shah, A/9, Satyam Apartments, St. Xaviers School Road, Near Devkinandan Jain Temple, Naranpura, Ahmedabad.