Andhra Pradesh High Court - Amravati

Angadi Gayathri vs The State Of Andhra Pradesh on 28 April, 2023

Bench: D.V.S.S.Somayajulu, V Srinivas

      HIGH COURT OF ANDHRA PRADESH: AMARAVATI

             HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU

                                    AND

                  HON'BLE MR.JUSTICE V.SRINIVAS


                   W.P.Nos.1703 and 7734 of 2023



COMMON ORDER: (per D.V.S.S.Somayajulu, J)


     W.P.No.1703 of 2023 is fled for the following relief:

    '....to issue a writ, order or direction more particularly one in the
    nature of Habeas Corpus or any other appropriate writ order or
    direction declaring the action of respondents in having custody of

my infant girl child names Kasthuri Corpus aged about 16 months as unlawful, illegal and arbitrary and consequently direct the respondent Nos.1 to 3 to trace out my daughter by name Baby Kasthuri Corpus born on 05.09.2021 and produce her before this Honble Court set her at liberty from the wrongful and illegal custody of Respondent Nos.5 and 6 giving her custody to the petitioner and pass...'

This Court has heard learned counsel for the petitioner, Sri

Vivek Anand for respondent Nos.1 to 3, Sri Narasimha Rao

Gudiseva for respondent No.4 and Sri Dasari S.V.V.S.V.Prasad for

respondent Nos.5 and 6 in W.P.No.1703 of 2023.

After perusal of the facts, this Court realizes that there is no

dispute about the fact that the petitioner is the natural mother of

the child-Kasthuri. It is also a fact that the child was born on

05.09.2021.

The petitioner's case was that the child was illegally taken

away from her custody soon after the delivery of the baby and

handed over to respondent Nos.5 and 6 who are unrelated to her

or to her family. Learned counsel also points out that without a

valid adoption, respondent Nos.5 and 6 are in custody of the child.

It is urged that the petitioner is an employee working as Welfare

and Education Assistant in Kurnool and that she has the

necessary inclination and financial capacity to take care of the

child.

Relying upon the judgments reported in Tejaswini Gaud

and others v. Shekhar Jagdish Prasad Tewari and others1

and Division Bench judgment reported in Manju Malini

Seshachalam v. Vijay Thirugnanam2, which is the original

judgment from which the appeal was filed in the Hon'ble Supreme

1 (2019) 7 SCC 42

2 2018 SCC online Kar 621

Court, learned counsel argues that since there is no valid

adoption, the custody of the child with respondent Nos.5 and 6

should be deemed to be illegal detention.

On behalf of the State, it is mentioned that pursuant to a

Police complaint, the custody of the child was given to the Child

Welfare Centre, Kurnool. The State is willing to abide by the

orders passed by this Court.

Respondent No.4 has filed a counter and the submissions

are about the 'relationship'. As far as material necessary for this

Court is concerned, it is admitted that the petitioner is an

employee. It is however stated that the petitioner voluntarily

handed over the child to respondent Nos.5 and 6.

Coming to the counter filed by respondent Nos.5 and 6, they

state that they are Tailors by profession and that they have great

love and affection for the child. It is stated and reiterated that the

petitioner through one Venkateswara Rao handed over the child to

respondent Nos.5 and 6. They got the new born child treated for

five days as she was underweight and was put on an incubator.

Later, they took the child to Kurnool and have looked after her

with great love and affection by celebrating her birthdays etc. It is

also asserted that the child was voluntarily given to them and

there is no element of kidnap etc.

COURT: This Court has also heard the parties in person in the

open Court. Petitioner reiterates her desire to look after the child.

Respondent Nos.5 and 6 also assert that they are interested in

looking after the child's welfare.

The judgment in Manju Malini Seshachala (2 supra),

which is referred to earlier, has been approved by the Hon'ble

Supreme Court in Tejaswini Gaud's case (1 supra) and the

following is held in para 14:

14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

Admittedly, there is no adoption in this case. As per law, a

valid adoption can only take place in terms of sections 6 and 11 of

the Hindu Adoptions and Maintenance Act, 1956, which are as

follows:

6. Requisites of a valid adoption.―No adoption shall be valid unless-- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

11.Other conditions for a valid adoption.―In every adoption, the following conditions must be complied with:― (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu sonson's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or

more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 1 [or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption: Provided that the performance of dattahomam shall not be essential to the validity of an adoption.

Such an adoption is not there in this case.

The child was born in September, 2021. Admittedly, she is

below five (5) years of age. Her natural guardian is her mother.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is

as follows:

6. Natural guardians of a Hindu minor.--The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

No allegations are made against the character of the mother

or of her lack of financial capacity etc. Nothing adverse is

mentioned about the mother.

In view of the fact that there is no valid adoption and as the

child is below five (5) years, the mother is the natural guardian,

this Court in the facts and circumstances of the case and for now

has no option but to allow the writ petition.

W.P.No.1703 of 2023 is, therefore, allowed. The respondents

are directed to hand over the custody of the child-Kasthuri to the

petitioner in W.P.No.1703 of 2023.

W.P.No.7734 of 2023 is filed by the respondent Nos.5 and 6

in W.P.No.1703 of 2023. It is their contention that the present 8th