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PETITIONER: RAJIV BHATIA

       Vs.

RESPONDENT: GOVT.  OF NCT OF DELHI & ORS.

DATE OF JUDGMENT:       09/09/1999

BENCH: G.B.Pattenaik, U.C.Banerjee

JUDGMENT:

     PATTANAIK, J.

     Leave granted.

     These  appeals by grant of special leave are  directed against  the judgment dated 11.3.99 by the Division Bench of the Delhi High Court in a writ of habeas corpus filed by the natural  mother  of  a  young   girl,  named  Akansha.   The undisputed  facts  are  that Priyanka had  married  Amit  in April,  1993.   Out  of their wedlock, two girl  children Akansha  and  Jayanti  were born.  The husband of  Priyanka was  a  Preventive Officer in the Customs Department of  the Government  of India.  The said Priyanka filed the  petition for  issuance of writ of habeas corpus alleging therein that her  daughter,  Akansha is in illegal custody of Rajiv,  the elder  brother of her husband and the said Akansha should be produced in Court and she should be given the custody of the child.   Earlier to the filing of the aforesaid petition  in Delhi High Court, the said Priyanka had filed an application in a writ of habeas corpus in Rajasthan High Court at Jaipur in  which  notice  had  been duly issued and  the  State  of Rajasthan  had  filed  an  affidavit  stating  therein  that Akansha  and  her younger sister, Jayanti had been given  in adoption  by the natural parents to Rajiv and his wife and a registered  deed  of  adoption  has been  executed  and  the children are staying in Bombay with her adoptive parents and as  such the High Court of Rajasthan has no jurisdiction  to entertain the habeas corpus petition and to issue directions therein.   In Delhi High Court, Priyanka had challenged  the validity  of the deed of adoption said to have been executed by  her  and her husband, inter-alia on the ground that  the said  documents  were fraudulently got executed and  on  the statement  of  her  husband,  she has  signed  those  papers thinking  them to be in relation to some property.  Pursuant to  the notice issued by the Delhi High Court, the  adoptive father appeared and contested the proceedings, inter-alia on the  ground  that Akansha has been given in adoption by  the natural  parents by executing a registered adoption deed and from  the  date  of said deed, Akansha is staying  with  the adoptive  parents  and  the adoptive parents are  in  lawful custody  of  the  child  and consequently  the  question  of issuing  a  writ  of habeas corpus does not arise.   By  the impugned  judgment, the High Court examined the legality  of the adoption deed to find out whether the custody of Akansha should  be  with  the natural mother or  with  the  adoptive

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parents.   The  High Court came to the conclusion  that  the deed of adoption does not suffer from any illegality but the said alleged adoption does not inspire confidence.  The High Court  also  came to the conclusion that the possibility  of signatures  of  the natural mother on the adoption  deed  of Akansha    were    taken   by     practicing    fraud    and misrepresentation,   as  alleged  cannot   be   ruled   out. According  to  the  High  Court,   prima  facie  it  is  not acceptable  that the young mother would give in adoption her daughter,  aged three years.  The High Court also considered the  question of performance of ceremonial gift and came  to hold  that  it can be presumed that the ceremonial gift  has not  been  performed.  Ultimately, the High  Court  directed that  the custody of the daughter, Akansha shall remain with the   natural  mother  till   appropriate  Civil  Courts  in appropriate  civil proceedings decide otherwise.  It is this direction  of  the  Delhi  High Court  in  a  habeas  corpus petition  which  is assailed in these appeals, one filed  by the  adoptive father, the other filed by Akansha through the adoptive  father and the third filed by the natural  father. Ms  Pinky  Anand  as well as Mr.  D.N.   Goburdhan,  learned counsel  assailing  the  impugned order of  the  High  Court contends  that  in  a petition for habeas corpus,  the  High Court  was  not  entitled  to examine the  legality  of  the adoption  deed  and  come  to his  own  conclusion  on  mere surmises  and  conjectures  even   ignoring  the   statutory presumption  of  a registered adoption deed available  under Section  16  of  the  Hindu Adoption  and  Maintenance  Act. According  to  them,  the  natural  mother  having  filed  a petition  for habeas corpus in Rajasthan High Court was  not entitled  to file a separate application in Delhi High Court which  tantamounts  to forum haunting and the High Court  of Delhi  committed  gross  error  in  entertaining  the   said application  and passing the impugned direction.   According to  the  learned counsel appearing for the  appellants,  the natural  mother is not an illiterate lady and having  signed the  deed  of  adoption  knowing contents  thereof  was  not entitled  to  wriggle out from the same by making  frivolous allegations.   Ms Kamini Jaiswal, learned counsel  appearing for  the natural mother on the other hand contends that  the circumstances  under  which the mother was deprived  of  the responsibilities  and  duties  of  taking care  of  her  own children   shocks  the  normal   conscience  and  under  the circumstances  the  High Court was justified in issuing  the impugned direction.  Before examining the correctness of the rival  submissions, we would like to state one fact that  in view of the allegations and counter allegations made, we had called  upon the natural mother to produce the child in  our Chambers to ascertain the views of the child and pursuant to the  said direction, the child was produced in our Chambers. Though  the child is quite young and is, therefore, not in a position to express any positive view, on questioning her we have  got  the impression that the child would like to  stay with  her  natural mother and does not want to be  with  the alleged  adoptive parents.  This is borne out from the  fact that  even in our Chambers when the adoptive parents  wanted to  talk, the child started crying and did not want to  talk to  them  even.   Though  Mr.   D.N.   Goburdhan  vehemently submitted that this is the result of tutoring but we are not persuaded  to accept the said submission.  We could  gather, by  putting  questions to the child, in the absence  of  the natural  mother,  adoptive  parents  and  the  lawyers  that Akanshas  natural instinct is to continue with the  natural mother.   We  have no hesitation to come to  the  conclusion that the High Court of Delhi in a petition for habeas corpus

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was  not  entitled  to examine the legality of the  deed  of adoption  and  then  came to the conclusion one way  or  the other  with  regard to the custody of the child.   The  High Court  has lost sight of the fact that the petition was  one for issuance of writ of habeas corpus and not for custody of the  child.   Then again, Mr.  D.N.  Goburdhan and Ms  Pinky Anand  were  justifed in their submissions that  the  mother having  filed  the petition for habeas corpus  in  Rajasthan High  Court, was not entitled to invoke the jurisdiction  of the Delhi High Court.  That apart in the manner in which the High  Court of Delhi appears to have issued direction to the SHO  of  Lajpat  Nagar Police Station to produce  the  child indicates  that  the  entire  episode is  by  way  of  stage maneuvering.   We,  therefore, find sufficient force in  the submissions  of  learned  counsel for the  appellants.   But having  had  the  opportunity of ascertaining the  views  of young  Akansha,  as  already  stated, and  in  view  of  our conclusion  that  the  child does not want even to  talk  to adoptive  parents, we are not inclined to interfere with the direction  of  the Delhi High Court allowing the custody  of Akansha  to the natural mother until appropriate decision of competent  forum is obtained with regard to the validity  of the  adoption  deed as well as the custody of the  child  in question.   We  accordingly  dismiss   these  appeals.   We, however,  make  it clear that any observation made by  Delhi High  Court  in  the impugned judgment with  regard  to  the validity  of the registered deed of adoption or with  regard to  the  suitability of the custody of Akansha will  not  be binding in the pending proceedings.