ORDER

1. 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 3.5.2019 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.

2. 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 Adoptions 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.

3. 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.

4. 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 v. 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 v. Kailash Narain Dixit and others, AIR 1978 MP 24.

5. 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.

6. 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.

7. 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.

8. 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 Muhamme