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2022 Supreme(P&H) 127
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
M.S. Ramchandra Rao, J.
Pooja Rani – Appellant
Versus
State Of Punjab & Ors. – Respondents
CRWP -5770 of 2022
Decided On : 15-06-2022
Mr. Amit Sharma, Advocate, for the Appellant; Mr. Karanbir Singh, AAG, Punjab, Mr. Mayur Kumar, Advocate, for the Respondent.
The Hindu Adoptions and Maintenance Act, 1956 does not recognize an agreement to adopt a child who is not yet born, and the absence of a registered document concerning the adoption affects the validity of the adoption.
Headnote:
Habeas Corpus - Custody Dispute - The Hindu Adoptions and Maintenance Act, 1956
Fact of the Case:
The petitioner, the natural mother of a baby boy, sought a writ of habeas corpus as the child was allegedly in the custody of respondent Nos. 4 and 5. The respondents had taken the child after obtaining an agreement from the petitioner and her husband.
Finding of the Court:
The court found that there was no valid adoption as per the provisions of The Hindu Adoptions and Maintenance Act, 1956, and no registered document concerning the adoption. As the Act does not envisage an agreement to adopt a child who is not yet born, the respondents could not claim lawful custody of the child.
Issues: Dispute over custody of a child and the validity of the adoption under The Hindu Adoptions and Maintenance Act, 1956.
Ratio Decidendi: The court relied on the provisions of The Hindu Adoptions and Maintenance Act, 1956, which does not recognize an agreement to adopt a child who is not yet born, and held that the respondents could not claim lawful custody of the child.
Final Decision: The writ petition was allowed, and respondent Nos. 4 and 5 were directed to hand over the custody of the baby boy to the petitioner. The respondents were given the option to enforce any agreement they have in an appropriate court of law.
JUDGMENT
M.S. Ramchandra Rao, J. (Oral). - This petition has been filed seeking a writ of habeas corpus with regard to a new bom baby boy bom on 23.5.2022, who is alleged to be in custody of respondent Nos. 4 and 5 by the petitioner. The petitioner is admittedly the natural mother of the baby.
2. Before the birth of the child to the petitioner, respondent Nos. 4 and 5 had requested the petitioner and her husband to give the child in adoption, and after the birth of the child, the child was taken away by respondent Nos. 4 and 5, who obtained an agreement from the petitioner and her husband allegedly by use of force.
3. It is contended that the petitioner is the natural mother and the natural guardian of the child, that there is no valid adoption as per the provisions of The Hindu Adoptions and Maintenance Act, 1956 (for short the Act) and there is also no registered document concerning the adoption as per Section 16 of the Act.
4. Counsel for respondent Nos. 4 and 5 does not dispute that the petitioner is the natural mother of the baby boy and there is no registered agreement in their favour as to the adoption. The Hindu Adoptions and Maintenance Act, 1956 does not envisage an agreement to adopt a child, who is not yet born. Thus, respondent Nos. 4 and 5 cannot claim to be in lawful custody of the minor child in question.
5. In view of the above, the present writ petition is allowed and respondent Nos. 4 and 5 are directed to hand over the custody of the baby boy to the petitioner forthwith. It is open to respondent Nos. 4 and 5 to take steps to enforce any agreement, which they have, in an appropriate Court of law against the petitioner and her husband with regard to their claim for adoption of the said child. No costs.
