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Writ Of Habeas Corpus Will Not Lie When Adoptive Mother Seeks Child’s Custody From Natural Mother: MP HC

 

In a significant development, the Division Bench of Madhya Pradesh High Court comprising of Chief Justice Mohammed Rafiq and Justice Vijay Kumar Shukla has in a latest, learned, laudable and landmark judgment titled Sanjana Soviya vs State of Madhya Pradesh & others in W.A. No. 1072/2019 delivered on 19 January 2021 has minced no words to convey the simple, short and straight message that, “Writ of habeas corpus will not lie when adoptive mother seeks child’s custody from natural mother”. The law laid down in this bold, brief, blunt and balanced judgment is this as stated in the beginning itself that, “The petition filed by someone who claims to be adoptive mother seeking custody of the child from the respondent No.4, who is none other than the natural mother of the child and is disputing the genuineness of adoption deed – Held – writ of habeas corpus in a case involving such disputed questions of fact cannot be issued against natural mother. However, petitioner may avail her remedy before any other appropriate Court.” Very rightly so! The significant paragraphs are 6, 8 and 9 as stated in this judgment itself.

To start with, this commendable, cogent and composed judgment sets the ball rolling by first and foremost observing in para 1 that, “The present intra-Court appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the impugned order dated 03.05.2019 passed by the learned Single Judge in WP No.2790/2019 whereby the learned Single Judge dismissed the writ petition of habeas corpus and granted liberty to the appellant/writ-petitioner to prefer an appropriate application before the trial Court, as the questions of facts are involved and, therefore, no writ would lie.”

As we see, it is then stated in para 2 that, “Learned counsel for the appellant submitted that the appellant has adopted the child by a registered adoption deed. Since as per the provisions of Section 16 of the Hindu Adoption and Maintenance Act, 1956 (for short “the Act”), there is presumption of the correctness of the adoption, therefore, the appellant is entitled for custody of the child.”

To put things in perspective, the Bench then states in para 3 that, “The appellant preferred the writ petition seeking custody of the female child, aged about two-and-a-half years, from the respondent No.4. The undisputed fact is that the respondent No.4 is the mother of the child and, therefore, she is the natural guardian. The appellant submits that she had taken the child after execution of a deed of adoption which was executed by the respondent No.4 in favour of the appellant and, thereafter the child was given to the custody of the appellant by the respondent No.4.”

As it turned out, the Bench then points out in para 4 that, “It is argued that the child was taken by the respondent No.4 from the appellant on the pretext of playing with child but thereafter the child was never returned to the appellant. Therefore, a writ of habeas corpus ought to be issued to restore the custody back to the petitioner, who is her adoptive mother. Learned counsel for the petitioner, in support of his submissions, has relied upon the judgment of the Supreme Court in the case of Gohar Begum vs. Suggi alias Nazma Begum and others, AIR 1960 SC 93 and a Division Bench decision of this Court in the case of Smt. Usha Devi and another vs. Kailash Narain Dixit and others, AIR 1978 MP 24.”

Furthermore, the Bench then mentions in para 5 that, “Per contra, learned counsel for the respondent No.4 submitted that the deed of adoption is a fabricated document and the finger printouts of the respondent No.4 were taken by deceit without her knowledge that she was not a willing party to the adoption deed.”

Going ahead, the Bench then also brings out in para 6 that, “Contention of the learned counsel for the appellant that by virtue of Section 16 of the Act, presumption of validity of adoption has to be drawn, cannot be countenanced, as admittedly the parties are Christians and the aforesaid Act does not apply to them. Moreover, considering that the respondent No.4 is disputing the genuineness of the adoption deed, such presumption is always rebuttable. The dispute of this nature cannot be entertained in writ jurisdiction under Article 226 of the Constitution of India for issuance of a writ of habeas corpus to hand over the custody of the child to the petitioner.”

It would be pertinent to mention here that while citing the relevant case law, it is then stated in para 7 that, “The Division Bench judgment of this Court in Usha Devi’s case (supra) does not in any manner provide any help to the appellant. In that case, the parents of the child i.e. mother and father had jointly filed the petition for habeas corpus seeking custody of the child from the grandfather and uncle of the father of the child. In those facts, the Court held that the child aged 4½ years, has no independent volition of his own and will prefer to live with the person in whose custody he is then. The association of a boy with the other relatives will make him dear to them but such relations in preference to the mother and father, have no legal right to the custody of the minor child and the welfare of the child lies in his living with his natural guardians.”

While continuing in the same vein, the Bench then in para 8 cites another relevant case law stating that, “Another judgment relied upon by the learned counsel for the appellant in Gohar Begum’s case (supra) also arose out of an appeal filed by an unmarried Sunni moslem woman seeking custody of her illegitimate daughter, aged six years, from the respondent, who was her mother’s sister. It was held that under the Muhammedan Law, the appellant was entitled to the custody of the minor illegitimate daughter, no matter who her father was. The respondent had no legal right for the custody of the child. In this case too, the natural mother had approached the Court. The ratio of even this judgment does not in any manner apply to the case of the appellant. In fact, in the present case, the petition has been filed by someone who claims to be adoptive mother seeking custody from the respondent No.4, who is none other than the natural mother of the child and is disputing the genuineness of the adoption deed. Writ of habeas corpus in a case involving such disputed questions of fact cannot be issued against natural mother.”

It is a no-brainer that as a corollary, the Bench then puts forth in para 9 that, “In view of the aforesaid, the disputed questions of fact cannot be adjudicated in writ jurisdiction under Article 226 of the Constitution of India. We therefore do not perceive any illegality or perversity in the impugned order passed by the learned Single Judge, warranting any interference in this intra-Court appeal, dismissing the writ petition and granting liberty to the appellant/writ-petitioner to avail her remedy before any other appropriate Court.” Finally, it is then held in the last para 10 that, “Accordingly, the writ appeal being devoid of merit, is dismissed. No order as to costs.”

In essence, the sum and substance of this noteworthy judgment is as already stated in the beginning itself. At the cost of repetition, it must be repeated again that the two Judge Bench of the Madhya Pradesh High Court comprising of Chief Justice Mohammed Rafiq and Justice Vijay Kumar Shukla has in this latest, learned, laudable and landmark judgment made it absolutely clear in no uncertain terms that, “Writ of habeas corpus will not lie when adoptive mother seeks child’s custody from natural mother”. All those women who in future intend to file writ of habeas corpus for this purpose as stated in this judgment must refrain from doing so as is made amply clear in this commendable judgment! There can certainly be just no denying or disputing it! Very rightly so!

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