Judgment

Mr. Arun Monga, J.

Master Agam Pratap Singh (born- 01.11.2019) is alleged to be under unlawful custody. Hence the instant writ petition for issuance of a Habeas Corpus. Relief sought is two-fold; firstly to produce the minor before the Court and secondly to restore his custody to the petitioners (his biologicalparents). Circumstances of Agam of not being in custody of his parents are rather unanticipated viz. his non-custodial biological mother is pitted against her Bhabhi-respondent No.3 (wife of brother of biological mother), who is allegedly the captor of her 3 years old minor son Agam and thus keeping him with her as a captive. While, respondent no.3 claims herself to be his custodial adoptive mother since February- 2020, when he was merely 3 months old and asserts that the minor is emotionally bonded with her as son and treats and considers her as the real mother (otherwise she is Maami of the minor).

2. Biological mother’s case is that in a bid to salvage disintegrating fabric of her own marriage, as well as that of her brother, she took the painful decision to entrust her son Agam’s care to her brother and sister in law (respondent No. 5 and respondent No. 3, respectively)in the larger interest of the whole family. She comforted herself with the belief that her own parents (Naana-Naani of the child) were since residing with her brother (respondent No.5), they would provide the additional care to her young offspring. She states that she could not even remotely perceive at that juncture that an intricate scheme was then being orchestrated by her husband in collusion with her sister-in-law (Bhabhi)-respondent no.3, though later they fell out with each other and respondent no.3 even lodged an FIR against him inter alia under Section 307 IPC (alleging that he fired gunshot at her with intent to kill), in which he is currently on bail. At the relevant time, however, they had conspired to deprive the biological mother of her son by creating an adoption deed, which she was made to sign under coercion. The adoptive father-her brother, though had better sense, and he did not sign the deed, and thus there is no legal adoption. Consent of adoptive father is a must and, lack thereof renders the so-called adoption deed as non est and nullity, is the stand of the parents/petitioners.

2.1. While on the other hand, respondent no.3-the adoptive mother i.e. sister-in-law of biological mother, whose own marriage is now on the rocks, claims that there is a valid adoption of Agam. Regardless of the deed not having been signed by adoptive father, the adoption attained finality upon delivery of the minor to the adoptive parents, before they got separated. Handing over of the child was with the consent of biological parents. Both the adoptive parents also consented to it and therefore, she (respondent No. 3) is the legal custodian/guardian of Agam. Writ petition is liable to be dismissed.

2.2. Pertinently, adoptive father (respondent no.5) of the minor out rightly denies the stand taken by his wife-adoptive mother. He rather supports the version of his sister/biological mother. He asserts that he never consented to the adoption and minor is thus in illegal custody of his estranged wife.

3. Having succinctly summed up the case in hand, as above, let us now adumbrate the facts in greater detail, first as pleaded in the petition and then as per the counter affidavits.

3.1 Marriage between petitioners, both practicing as physicians being General Surgeon and Radiologist respectively, was solemnized on 19.08.2017. They are blessed with two children out of their wedlock, elder daughter namely Mehreen born on 18.06.2018 and a son named Agam Pratap Singh born on 01.11.2019. Respondent No.5-Gursagar Singh, an Executive Engineer with government, is real brother of petitioner No.1. He got married to respondent no.3 on 17.11.2013 who is currently serving as Superintendent of Police. They have no child from their own wedlock. They have been living separ