Madras High Court Refuses To Handover 3-Yr-Old Son's Custody To Biological Mother Considering Child Has Never Lived With Her

The bench of Justice MS Ramesh and Justice Sunder Mohan noted that the child had never lived with his biological mother, who was infected with HIV and was handed over to the private respondent when he was born. The court thus opined that it would be in the welfare of the child to continue being in the custody of the private respondent.

“We have taken into consideration the fact that the minor boy has been under the care and custody of the fifth respondent herein right from the date of his birth and his physical custody has never been with the petitioner at all. The boy is now aged about 3 years and 9 months. At this age, when he had never lived with the petitioner, it would be in the welfare of the child that his care and custody should be retained by the fifth respondent herein for the present,” the court observed.

The court was hearing a habeas corpus plea filed by the biological mother to hand over her son from the illegal custody of the respondent. She argued that her father handed over the custody of the minor child temporarily when he was born and when she sought to hand over the custody, the respondents refused the same. It was argued that since there was no legal adoption, the refusal of the respondents amounted to illegal custody.

She further informed the court that though she had filed a police complaint and a complaint to the Child Helpline she got no relief. The private respondent then filed a petition before the Principal District Judge, Erode under Sections 7 and 8 of the Guardianship and Wards Act for appointing her as the guardian of the minor child which was still pending.

On behalf of the private respondents, it was argued that the biological mother had given the child in adoption with her knowledge and consent as she was affected with HIV. It was submitted that since the petition for guardianship was still pending, the prayer in the present Habeas Corpus petition had to be rejected.

The court noted that since the foundational facts of the case, regarding the nature of child's custody itself was disputed, the court could not exercise its powers under Article 226 of the Constitution and venture to adjudicate the disputed facts.

The court also gave liberty to the biological mother to visit her son at the house of the respondent once a week pending final disposal of the guardianship petition and directed the Principal District Judge, Erode to dispose of the petition within a period of 6 months.

Counsel for the Petitioner: Mr.Avinash Wadhwani

Counsel for the Respondent: Mr.E.Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind, Mr.B.Mohan

Citation: 2024 LiveLaw (Mad) 186

Case Title: D Madhumithra v The State and Others

Case No: H.C.P.No.522 of 2024