Writ Of Habeas Corpus Will Not Lie When Adoptive Mother Seeks Child's Custody From Natural Mother: Madhya Pradesh High Court

"Writ of habeas corpus in a case involving such disputed questions of fact cannot be issued against natural mother"

The Bench of Justice Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla was hearing an appeal preferred by one Sanjana Soviya being aggrieved by the impugned order passed by the learned Single Judge whereby her writ petition of habeas corpus was dismissed.

The matter before the Court

The appellant (claiming to be adoptive mother) preferred the writ petition seeking custody of the female child, from the respondent No.4 (the natural mother of the child).

The appellant submitted 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.

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.

Court's observations

Considering that the natural mother of the Child disputed the genuineness of the adoption deed, the Court remarked

"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."

Importantly, the Court said,

"The petition was filed by someone who claims to be adoptive mother seeking custody from the respondent No.4, who is none other than the natural mother of the child and is disputing the genuineness of the adoption deed. Writ of habeas corpus in a case involving such disputed questions of fact cannot be issued against natural mother."

Lastly, the Court opined that in view of the aforesaid, the disputed questions of fact cannot be adjudicated in writ jurisdiction under Article 226 of the Constitution of India.

Therefore, the Court did not perceive any illegality or perversity in the impugned order passed by the Single Judge, warranting any interference in this intra-Court appeal.

Accordingly, the writ appeal was found to be devoid of merit and was thus, dismissed.

It may be noted that the Madhya Pradesh High Court had, last year, allowed a habeas corpus petition, which in effect pertained to the custody of a 2 year old boy, holding US citizenship.

The writ was filed by the mother of a 2 year old boy- born in and a citizen of the United States.

Significantly, the Petitioner's husband had obtained an ex-parte restraint order against her from an American Court, forcing her to move out of her matrimonial house and return to her parents' home in Indore, India.

Thereafter, the Petitioner's husband left their son at his parents' (the child's grandparents') house in Gwalior, and executed a Power of Attorney and Authorization in the favour of his parents, to look after the child.

The Petitioner had accordingly moved the High Court, seeking custody of her child.

Case title - Sanjana Soviya v. State of Madhya Pradesh & others [W.A. No. 1072/2019]

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