The Madhya Pradesh High Court, Indore Bench, recently refused to interfere in a matter related to the custody of a child, holding that an adopted child cannot be handed over to his biological parents without inquiring whether the child has any knowledge of his parentage. The Court further noted that family courts are appropriate forums for such inquiries since they are well equipped for the same.
Justice Vivek Rusia was dealing with a writ petition in the nature of Habeas Corpus, wherein the petitioners being the biological parents of a 12-year-old child were seeking custody of their child from his adoptive parents.
The case of the Petitioners was that they had given one of their sons to Respondents till the latter had a child of their own. However, relations between the Petitioners and Respondents worsened over a period of time. Consequently, Petitioners insisted on getting their son back from his adoptive parents/Respondents. Placing reliance on the decision of the Apex Court in Tejaswini Guad v. Shekar Jagdish Prasad Tiwari, the Petitioners argued that in exceptional circumstances the High Court can issue a writ of habeas corpus in order to secure the custody of the child.
Considering the scope of its power while dealing with a petition in the nature of Habeas Corpus for custody of child, the Court observed-
So far, the maintainability of the writ petition is concerned Apex Court in the case of Tejaswini Guad (supra) has held that in the child custody matter writ of habeas corpus is maintainable where it is proved that detention of minor child by a parent or others was illegal and without the authority of law. The Apex Court in the aforesaid case in para-20 has also held that in child custody matter the ordinary remedy lies under the Hindu Minority and Guardianship Act 1956 or The Guardians and Wards Act, 1890 as the case may be. There is a significant difference between the inquiry under The Guardians and Wards Act, 1890 and the exercise of power by the writ court which is summary in nature. It is only in an exceptional case the right of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus.
The Court noted that in the present case, the child, aged about 12 years, could not be handed over to the Petitioners all of a sudden, without verifying whether he knew that they were his biological parents. It further observed that such inquiries were liable to be conducted by the competent court under the provisions of The Guardians and Wards Act, 1890-
While dealing with the child custody case the paramount consideration should be the welfare of the child and due weightage should be given to the child’s ordinary comfort, containment, health, education, intellectual development and favorable surroundings. It is required to be verified whether the child is aware that respondents no.2 and 3 are not his parents. If all of a sudden it is disclosed to him that respondents no.2 and 3 are not his parents then it may affect his psychological state of mind therefore, all these procedures are required to be done gradually with the help of a physiologist or trained mediator , or counselor which is not possible under the proceeding of the writ petition filed under article 226 of the Constitution of India. The Family Court is fully equipped to deal with such a situation. It is a fit case where the parties must approach the Family Court to claim custody of the child.
With the aforesaid observations, the Court dismissed the petition and held that the dismissal shall not come in the way of deciding the rights between the parties before the competent court.
Case Title: SMT. ALKA SHARMA AND NO. v. THE STATE OF MADHYA PRADESH AND ORS.
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