Important Point
Where natural mother filed habeas corpus petition alleging illegal detention of her child and defence put up was that child was given in adoption under a deed of adoption, High Court could not examine legality of adoption deed to decide question of custody of child.

Headnote:Constitution of India - Article 226-Habeas corpus-Allegation by mother of minor girl that girl was under illegal detention of her husband’s brother-Defence that child was given in adoption-Earlier habeas corpus writ in another High Court dismissed-High Court examined deed of adoption and expressed opinion that adoption deed did not suffer from any illegality-High Court however, holding that adoption did not inspire confidence and possibility of taking signature of natural mother on adoption deed could not be ruled out directed custody of child to remain with natural mother till appropriate Civil Court decided issue otherwise-Held: High Court not justified in examining legality of deed of adoption and then come to conclusion one way or other with regard to custody of child-Petitioner having earlier filed habeas corpus petition in Rajasthan High Court was not entitled to invoke jurisdiction of Delhi High Court-However in view of fact child does not want to even talk to adoptive parents direction of Delhi High Court does not warrant interference.
Held : 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 justified 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 appropriation 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. (Para 7)

Judgment

Pattanaik, J.-Delay condoned in filing the special leave petition.

2. Leave granted.

3. 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. 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.

4. 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 Hin

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1999 Supreme(SC) 989

Important PointWhere natural mother filed habeas corpus petition alleging ille­gal detention of her child and defence put up was that child was given in adoption under a deed of adoption, High Court could not examine legality of adoption deed to decide question of custody of child.

Important Point
Where natural mother filed habeas corpus petition alleging illegal detention of her child and defence put up was that child was given in adoption under a deed of adoption, High Court could not examine legality of adoption deed to decide question of custody of child.