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Saturday, November 28, 2020

‘Natural attachment to her child cannot be undermined’: Biological mother wins custody battle

The bench passed the order hearing the plea of a woman from Chandigarh, who had filed a habeas corpus petition in high court seeking to secure the release of her son, who is allegedly in the “illegal custody” of her father-in-law, mother-in-law and a woman who claims to have legally adopted the child.

Written by Jagpreet Singh Sandhu | Chandigarh | October 21, 2020 10:04:56 am
Tarn Tarn blast case, Tarn Tarn blast case accused, Tarn Tarn blast case accused allowed to attend sisters marriage, Harjeet Singh, indian express newsThe HC meanwhile appointed Anil Malhotra as amicus curiae, in the matter, who in his report submitted to HC that the report was not valid.

Weighing the sentiments of an adoptive mother with that of the biological mother of a year-old boy, and observing that the latter nurtured him for nine months in her womb, the Punjab and Haryana High Court, allowing the habeas corpus plea of a woman, ordered that custody of the child be returned immediately to the biological mother.

The bench of Justice Amol Rattan Singh passed the order hearing the plea of a woman from Chandigarh, who had filed a habeas corpus petition in high court seeking to secure the release of her son, who is allegedly in the “illegal custody” of her father-in-law, mother-in-law and a woman who is the sister of a woman living in the USA, who claims to have legally adopted the child.

According to the petition of the biological mother of the child, she got married in May 2017, and her husband died in July 2019. Thereafter, her in-laws started harassing her, asking her to leave the house in Patiala, and she went to Chandigarh, to her maternal home, leaving behind her son. By then she had been introduced to the sister and brother (from Delhi) of the adoptive mother, who is from USA. The petitioner was then assured that her son would be legally adopted and that she would be called to meet the adoptive parents and only upon her being satisfied, would the adoption take place, says the plea.

The petitioner meanwhile came to know that an illegal adoption was being executed and she was never called for the same, with her therefore not knowing the whereabouts of her son. As per her plea, when she rung up her in-laws they refused to tell her the whereabouts of her son, other than the fact that they had already given him up for adoption to a woman from the USA, who would be taking the child out of India by the last week of January 2020. The petitioner approached the Chandigarh Police then in December 2019, and in January 2020, the in-laws of the petitioner made a statement before Chandigarh Police that the child would be handed over to the petitioner on January 13, 2020. However, that not having been done, she moved to HC filing a habeas corpus plea, on January 23, 2020.

At the HC, the Chandigarh Police submitted that the in-laws of the petitioner said that the decision to give the minor child for adoption was a voluntary one by her and they would have no objection to either the custody of the child being given back to the petitioner or it remaining with the woman from USA and her husband. The in-laws of petitioner also submitted before HC that writ in the nature of habeas corpus, is not maintainable as it is not “a legal remedy to challenge an adoption or adoption deed”, and the petitioner had herself given her son up for adoption without any coercion and pressure.

The adoptive mother and her sister and brother in reply submitted at HC that the adoption ceremonies were held in the presence of at least 20 relatives on both sides and therefore, once it is established that the petitioner herself handed over custody of her free will and consent, the petition is also not maintainable. The child was initially in the custody of the American woman’s sister at Delhi, and then on December 3, 2019, a deed of adoption was reduced into writing on stamp paper which was purchased on September 5, 2019, when the affidavit was executed.

Amicus curiae appointed

The HC meanwhile appointed Anil Malhotra as amicus curiae, in the matter, who in his report submitted to HC that the report was not valid. Malhotra further submitted that though the petitioner gave away her child to the sister of the adoptive mother on September 5, 2019, as would also seem to be obvious from the photograph, yet she does not seem to have been actually present on December 3, 2019.

Malhotra also pointed out in the report in HC that the adoption deed relied upon by the US woman and her relatives on December 3, 2019, was not signed by the petitioner on December 3, 2019 but on September 5, 2019 itself, after which she had in fact refused to sign any papers, though she obviously signed the affidavit.

The deed never actually having been signed in the presence of both parties together, very obviously the petitioner had changed her mind by the time the adoptive mother and her husband came from the US; and she had decided not to give the child up for adoption and consequently, with there being no actual giving and taking of the child by the biological mother to the adoptive mother or her husband, there is no valid adoption and therefore, the custody of the child would need to be restored to the biological mother, who is the petitioner, submitted Malhotra before HC.

The HC after hearing to the matter, observed: “…any person would understand that respondent no.7 (adoptive mother) would obviously have developed an attachment to the child in the past about nine months that she has had his custody (stated to be since 22.11.2019), which would also reflect from her willingness to transfer her entire savings of Rs 50 lakh to him. However, her sentiments are to be weighed against the sentiments of the petitioner who is the natural mother of the child, who legally would be entitled to his custody in view of what has been held in extenso hereinabove; and who nurtured him for nine months in her womb and thereafter even held him for more than three months, and consequently, her natural attachment to her own borne child, and her sentiments towards him, obviously cannot be undermined, once she is held to be legally entitled to his custody…”

The HC also held that it would be highly appreciated if the adoptive mother ensures that the transition of the child from her custody to that of the petitioner is made absolutely ‘easy’, with the child being firstly familarised with his natural mother and which needs to be done over a period of two weeks.

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