[Custody] Child Shouldn't Be Made To Feel He's Being Forcibly Taken From One To Another Just To Enforce Court Decree: Punjab & Haryana HC

Observing that child should not be made to feel as if he is being forcibly taken from one to the other, just to enforce decree of the court, the Punjab & Haryana High Court granted visitation rights to biological parents of a child who is in custody of alleged adoptive mother.

The bench of Justice Arun Monga said,

"As of now, the interim arrangement (visitation rights), as above, is being directed keeping in mind the paramount consideration of welfare of the child and, to obviate a situation in future where the child should not be made to feel as if he is being forcibly taken from one to the other, leaving him wailing and crying just to enforce decree of the court. It is thus imperative that the child develops an emotional bond and a bonhomie with both sets of families by forging a genuine camaraderie, for which all the parties shall render mutual co-operation."

The child's biological mother had filed a Habeas Corpus plea. It was submitted that the biological mother, who is sister-in-law of the adoptive mother of the child, entrusted her son’s care to her brother and sister in law during a rough patch in her marriage. The petitioner stated that she comforted herself with the belief that her own parents (Naana- Naani of the child) were since residing with her brother they would provide the additional care to her young offspring.

However, she alleged that her husband in collusion with her sister-in-law conspired to deprive her from the custody of the child by creating an adoption deed, which she was made to sign under coercion. The adoptive father, i.e. her brother, though had better sense, and he did not sign the deed, and thus there is no legal adoption, submitted the biological mother.

On a query raised by the Court, senior counsel Amit Jhanji, representing the petitioner conceded that though Adoption deed is not mandatory, but contended that the ceremonies of Adoption are a sine qua non.

On the other hand, senior counsel representing adoptive mother Dr. Anmol Rattan Sidhu, submitted that it is for the Guardian/Civil court to decide the rival contention of both the parties for and against factum and the validity of adoption and the High Court cannot delve deep into the contentious claim which would require extensive trial.

The child was validly adopted and after adoption the biological parents have severed ties with the child, it was submitted. He further submitted that once a valid adoption has been made it cannot be revoked.

After hearing the submissions the Court noted that there is no quibble about the proposition that no particular form is prescribed for the adoption ceremony. Prima facie all that is required is that natural parents should handover the adoptive child and the adoptive parent should receive him.

In the present case, the adoptive child was concededly handed over physically to adoptive mother by biological parents, though biological mother’s case is that she was tricked into it, said the Court.

"Another major dispute, however, also remains as to whether the consent of adoptive father was there and if not, whether the adoptive mother had the capacity to adopt the minor child in the absence of consent of her husband," it added further.

Considering the limited scope of habeas corpus petition, the Court opined that the credibility of documents submitted by both parties to support their claims and counterclaims regarding the adoption are a matter of trial.

"This Court has got its own Jurisdictional constraints to give any findings qua these issues. The writ jurisdiction is summary in nature and very limited on disputed factual aspects. Issues of child custody and adoption would typically fall under the purview of specific family laws..." added the Court.

The Court further said that till the case is decided, it is necessary to prioritize the welfare of the child in question. "Courts prioritize the best interests of the child above all else, which entails not only his immediate circumstances, but also the child's long-term well-being, emotional development and stability," said the judge.

Directing the parties to approach the civil court, the bench directed the adoptive mother to allow biological parents to have the visitation rights qua the minor child, on every weekend.

"Parties are directed to comply with the direction of this court in mutual spirit of give and take by keeping their differences aside and in the larger interest of welfare of the child. They all must make earnest collective endeavour to ensure that the minor is not subjected to any distress or anguish on their account, which may lead to him being inconsolable, given his tender age," observed the Court.

Case Title: Dr. Honey Chahal and another v. State of Punjab and others

Citation: 2023 LiveLaw (PH) 165

Appearance: R.S. Rai, Senior Advocate and Amit Jhanji, Senior Advocate with Advocated Rahul Bhargava, and Arti Kaur, Eliza Gupta for the petitioner.

Dr. Anmol Rattan Sidhu, Senior Advocate with Pratham Sethi, Advocate for respondent No.3.

Advocates Vishal Sharma, and S.S. Aviraj for respondent No.4.

Kunal Dawar, Advocate for respondent No.5.

Guramrit Kaur, Deputy Advocate General, Punjab with Mr. Mohit Thakur, AAG Punjab. 

Click here to read/download the order.