Priyanka Bhatia vs Govt. Of Nct Of Delhi & Others
1999 Latest Caselaw 216 Del

ORDER

A.K. Srivastava, J.

1. This criminal writ petition of Habeas Corpus has been filed by one Ms. Priyanka Bhatia for the custody of her two minor daughters, namely, Akansha and Jayanti aged three and a half and two and a half years respectively from the illegal custody of respondents 3 and 4.

2. This petition came up for hearing on admission on February 15, 1999. On that date notices were issued to the respondents to show cause why the petition be not admitted and in the meantime SI Krishan Kumar of P.S. Lajpat Nagar, who was present in Court, was directed to proceed to C-23, Dayanand Colony, Ground Floor, Lajpat Nagar-IV, New Delhi where the children of the petitioner were stated to be confined by respondent No. 3. He was directed that in case the children were found at the given address, they shall be produced before the Court on that very day at 4.00 P.M. In compliance of those orders Akansha and Jayanti were produced by SI Krishan Kumar Kamat in Court on that very day. According to the sub-Inspector, they were taken from the custody of respondent No. 3 and respondent No. 4 respectively. Appearance was made by Ms. Pinki Anand and Ms. Geeta Luthra, Advocates on behalf of respondents 3 and 4 and they were directed to file replies. On the next date of hearing appearance was also made on behalf of respondent No. 2, who is husband of the petitioner. Respondent No. 3 is elder brother of respondent No. 2 and respondent No. 4 is aunt (Mausi) of respondents No. 2 and 3. We find that respondents No. 2 and 3 have filed response to this petition whereas respondent No. 4 has not filed any reply.

3. On a day, during the course of hearing in this petition, the petitioner, her father, respondent No. 2 and wife of respondent No. 3 were heard in Chamber to find out whether any reconciliation was possible between the parties but it appeared that there was no possibility and hence the petition was finally heard on merits.

4. The undisputed facts are as follows. The petitioner Priyanka Bhatia was married to respondent No. 2 on April 13, 1993. At that time the petitioner was barely eighteen years of age and had just completed her 10th class and was prosecuting further studies. Out of the marriage, there are two female issues, namely, Akansha and Jayanti. Akansha was born on May 27, 1995 and Jayanti was born on July 1, 1996. Respondent No. 2 is Preventive Officer in the Customs Department of Government of India. The petitioner and her husband, respondent No. 2, are not staying together since October 23, 1998. On October 25, 1998, the petitioner lodged an FIR, being No. 100/98, under Section 498A/406 of the Indian Penal Code at Women's Police Station, Gandhi Nagar, Jaipur. Respondents No. 2 and 3 and their mother were arrested at Bombay and were brought to Jaipur but later on were released on bail. A writ of Habeas Corpus, being No. 276/99, was filed by the petitioner on January 25, 1999 in the Rajasthan High Court at Jaipur in which notice was issued only to the State of Rajasthan. Reply was filed by the State of Rajasthan taking preliminary pleas that the High Court of Rajasthan had no jurisdiction to entertain the petition as the minor children (the said two daughters of the petitioner) had been given in adoption by the petitioner and her husband by registered adoption deeds to respondents No. 3 and 4 respectively and their custody was also given to them at Bombay and that the petitioner ought to have filed a writ of habeas corpus in the Bombay High Court and not in the Rajasthan High Court.

5. The facts contended by the petitioner are that when the petitioner was married to respondent No. 2, she was a girl of an impressionable age having little education; that she was constantly harassed by her in-laws for having brought insufficient dowry; that in February, 1995, the petitioner's husband took a flat on rent at Meera Road, Bombay; that around January 1996, a flat was purchased at Meera Road, Bombay in the name of the parents of respondent No. 2 where respondent No. 3 (elder brother of respondent No. 2) along with his family started residing while the petitioner along with respondent No. 2 continued to live in a rented apartment in the same area; that in February, 1998, petitioner's daughter Akansha was admitted to Neranjan Lal Dalmia School, Meera Road; that around May, 1998, respondent No. 2 was allotted a Government accommodation at Powai which is about twenty five kilometres from the said Meera Road School; that soon after shifting to the Government accommodation at Powai, respondent No. 2 told the petitioner that since it was not easy to change the School of Akansha, she should be permitted to continue her education for one year at the same School and for that purpose it would be advisable to give the guardianship of Akansha to respondent No. 3, who was living at Meera Road as it would be convenient for him to take care of Akansha till here shifting to some School at Powai; that respondent No. 2 told the petitioner that for the aforesaid purpose certain documents were to be signed and the petitioner without suspecting any foul play in the matter and having complete faith and trust in her husband signed some documents at Mumbai without questioning the motives; that thereafter in Delhi as well respondent No. 2 got some papers signed in the sub-Registrar office saying that they related to some property of respondent No. 4 (Mausi of respondent No. 2); that on September 24, 1998, respondent No. 2 asked the petitioner to accompany him to Bandra Court for signing some papers in relation to some property and made her to sign the last page of the documents bearing verification; that when the petitioner turned over the page and was asked to sign the same she realized the petition was a petition for divorce and, therefore, she refused to sign the same and came out of the Court at which respondent No. 2 shouted at her and created a scene (in the petition the aforesaid date is given as 24.11.1998 whereas in the list of dates), the date is given as 24.9.1998. To us the date of 24.11.1998 appears to be a typing mistake because from the facts and circumstances as alleged in the petition that date could only be 24.9.1998 and not 24.11.1998 (the reason being that since 23.10.1998 admittedly, the petitioner and respondent No. 2 have not been living together and have no contact with each other); that when the petitioner refused to sign the divorce petition, the mother-in-law of the petitioner, who was also at Mumbai at that time took the petitioner to Delhi leaving behind the two minor daughters and kept her practically in confinement of the respondent No. 4; that the petitioner was harassed and threatened by her mother-in-law and was forced to sign a letter (as dictated by the son of respondent No. 4) addressed to SHO, Lajpat Nagar, Police Station, New Delhi which reads as follows:-

     "To                                                                               6.10.98
 

 The Police, 

S.H.O. Lajpat Nagar, 

New Delhi - 24.
 

Dear Sir,
 

 I am staying with my aunty Mrs. Seeta Virmani at her residence at 6, Ring Road, Lajpat Nagar 4, New Delhi. By my own free will as I am having divorce with my husband Amit Bhatia.
 

 When my parents came to know of this they are forcibly attempting to remove me from my aunty's place against my wishes. This is to bring to your notice that in case of such eventuality Mrs. Seeta Virmani has nothing to do with all this as she has been helping me throughout.
 

 Against my husband my parents have been doing all sorts of nonsense and are acting against my wishes. They are the real culprit for the divorce proceeding that we have to undergo. In case may parents remove me from my aunty place the police is requested to help me in bringing me back to Seeta Virmani.
 

 Thanking you,
 

 Yours truly, 

Sd./-  

(Priyanka)"

 

6. It has further been stated in the petition that during the stay of the petitioner at Delhi, the petitioner overheard the respondent No. 4 talking to petitioner's mother-in-law that they should try to do away with the petitioner; that the petitioner was terrified but could do nothing about it being alone at Delhi; that thereafter petitioner's mother-in-law took here back to Mumbai on 18.10.1998 and when the petitioner reached Mumbai on 19.10.1998, she could anyhow manage to get away and called up her parents at Jaipur and told them that her life was in danger; that the petitioner's parents reached Mumbai on 21.10.1998 and went to the petitioner's house in the evening but the petitioner's mother-in-law did not permit the petitioner to meet her parents and the parents were asked to come on the next date in the morning time when respondent No. 2 would be present; that on 22.10.1998 when respondent No. 2 returned from duty, he beat the petitioner and asked her as to how petitioner's parents had come to Mumbai and who had called them; that when petitioner's parents arrived at the house of the petitioner on the next date, the respondent No. 2 on seeing their car ran towards them with iron bar in his hand and threatened to kill them; that the petitioner tried to grab her two daughters and to run to her parents but her daughters were snatched from her by respondent No. 3 (elder brother of respondent No. 2) and the mother-in-law of the petitioner; that the petitioner in order to protect her parents just ran towards them and out of sheer desperation and shock put them in the car and drove them away since respondent No. 2 on several occasions had threatened the petitioner that he being in Customs Department had good links with the underworld mafia and with their aid, he could get rid of the petitioner and her family; that the petitioner pleaded with respondent No. 2 to take her two minor daughters with her to Jaipur but was told by respondent No. 2 that the daughters had already been given in adoption and she could get the children only through the Court's order or the police; that thereafter, the petitioner along with her parents left Mumbai and reached Jaipur by changing trains for the fear of respondent No. 2 and reached Jaipur in the late night of 23.10.1998; that an FIR, being No.100/98, was lodged in the Mahila Police Station (II) Gandhi Nagar, Jaipur.

7. The petition goes on to say that on 26.11.1998, the petitioner along with her father went to the Family Court at Bandra to collect the copy of the petition and from the copy of the petition she learnt that therein false averment had been made in respect of mutual consent for divorce, payment of rupees two lacs as permanent alimony and the alleged factum of giving in adoption and that thereafter on search being made at Bombay and Delhi she came to know about the registered deeds of adoption dated 8.5.1998 and 2.9.1998.

8. According to the petitioner the alleged adoption deeds in respect of the two daughters Akansha and Jayanti are the result of fraud played on her by undue influence and misrepresentation.

9. Though the petitioner has already filed a writ of habeas corpus in the Rajasthan High Court but in paragraph 23 of this petition it is categorically stated that she undertakes to withdraw the petition filed in the Rajasthan High Court at Jaipur.

10. The case of the petitioner, in nutshell, is that in view of the fact that the alleged adoption deeds in favour of respondent No. 3 and respondent No. 4 are the result of fraud having been committed on her with undue influence and misrepresentation and the same being void the custody of the minor daughters with respondents No. 3 and 4 is illegal. It has also been stated in the petition that respondent No. 4, aged 65 years, having her natural born son and daughter living could not have legally adopted Jayanti.

11. In response to this petition, only respondent No. 2 and respondent No. 3 have filed their short affidavits.

12. Respondent No. 2, Amit Bhatia, in his short affidavit took pleas that this Court had no jurisdiction to entertain the present petition as the children were only in Delhi in the lawful custody of their adoptive parents while transiting from Bombay to Jaipur; that the present writ petition involved detailed examination of disputed questions of fact and thus in its writ jurisdiction,the Hon'ble Court would not entertain the disputed questions of fact particularly where the children were in the custody of their adoptive parents and not with any stranger and that the said custody could not be said to be an illegal confinement; that the adoption deeds had been signed and executed by the petitioner and that the same had been acted upon also; that the elder daughter Akansha had been lawfully adopted by respondent No. 3 and his wife and she being in their lawful custody (at Mumbai) is living with them and studying in a nursery school at Meera Road (E) known as Neranjan Lal Dalmia School; that the younger daughter Jayanti had been given in adoption to respondent No. 4 (Mausi of respondent No. 2) as the petitioner had threatened to send the child to an orphanage since she wanted her (petitioner's) freedom; that Jayanti had been given in adoption by the petitioner to respondent No. 4 (Smt. Seeta Virmani) willingly and voluntarily by a registered adoption deed dated 2.9.1998. After taking the aforesaid stand, respondent No. 2 in his counter-affidavit, further states that he along with his aunt, respondent No. 4, are looking after Jayanti and she having been given in the adoption of respondent No. 4, however, remains in the overall custody of respondent No. 2, who is the father and that when there is a severance of ties between the petitioner and the daughter Jayanti due to adoption deed, Jayanti has become adoptive child of respondent No. 4, who has given the custody of the child to him. It has also been stated in the short affidavit that the petitioner had willingly moved a petition for mutual divorce and had signed and verified the same; that in the said mutual divorce petition, the petitioner had agreed to give the custody of Jayanti to him permanently. In para 14 of his counter-affidavit, the respondent No. 2 states that "de hors the adoption it is the respondent No. 2 father, who is the custodian and legal guardian of the said child whose sense of security and stability at this tender age lies in being with the respondent No. 2 (father) and Mrs. Seeta Virmani and hence the custody of the said child ought not to be disturbed in the present extra ordinary proceedings".

13. Respondent No. 3 in his short counter-affidavit claims to be adoptive father of Akansha on the basis of a registered adoption deed dated 8.5.1998. He says that respondent No. 2 gave in adoption the said daughter with the consent of the petitioner in accordance with Section 9 of the Hindu Adoptions and Maintenance Act, 1956. He also claims benefit of the presumption enacted in Section 16 of the said Act. According to him, he being father of the girl Akansha, her custody with him cannot be said to be wrongful or illegal and, therefore, no writ of Habeas Corpus against him lies in respect of said girl Akansha. It has further been stated in the affidavit that the petitioner could not invoke the extra-ordinary jurisdiction of this Hon'ble High Court depriving him of the custody of daughter Akansha, who has been legally adopted by him. It is also stated that the petitioner had herself admitted that she had given the guardianship of Akansha to the answering respondent and that in the mutual consent petition as well before the Family Court at Bandra, Bombay, the petitioner had categorically admitted that Akansha had been given in adoption to the answering respondent.

14. We have heard the learned counsel for the parties. Mr. Arvind Nigam along with Ms. Kamini Jaiswal advanced arguments on behalf of petitioner and Mr. D.N. Goverdhan advanced arguments on behalf of respondent No. 2 and 4. Ms. Geeta Luthra advanced arguments on behalf of respondent No. 3.

15. We do not agree with the contention of the learned counsel for the respondents that this Court has no territorial jurisdiction to entertain this petition. The minor daughters were in Delhi in the custody of respondents No. 3 and 4 when this petition was moved. Thus this Court had jurisdiction to entertain this petition. Regarding the already pending petition in Rajasthan High Court the petitioner had undertaken in this petition that she would withdraw the same. Moreover, in that petition the State of Rajasthan has already taken a plea that in view of the facts of the case that Court has no jurisdiction to entertain that petition.

16. On merits we may say that we are very clear in our mind that effectively this petition is between the petitioner and respondents No. 3 and 4. Respondent No. 2 has categorically taken a stand that the two daughters, Akansha and Jayanti, were given in adoption to respondents No. 3 and 4 respectively. Thus, as per his own case he has ceased to be the father of these two girls. He does not claim custody of the elder daughter Akansha. He has taken a categorical stand that she is in the custody of her adoptive parents. Regarding the younger daughter Jayanti, he has taken contradictory stands. On the one hand, he says that Jayanti has been validly given in adoption to respondent No. 4 but on the other hand claims her custody along with respondent No. 4. In our view, respondent No. 2 cannot be allowed to blow hot and cold in the same breath to anyhow claim the custody of the younger daughter Jayanti in this writ petition. Moreover, in para 18 of his counter-affidavit he admits that in Delhi both the children were in the custody of their adoptive parents.

17. Thus in view of above, we have to examine the two alleged adoption deeds in order to come to a conclusion whether custody of the minor daughters be given to the petitioner or should the same remain with respondents 3 and 4.

18. We will take up the case of the younger daughter Jayanti first. In the petition an averment has been made that respondent No. 4 Smt. Seeta Virmani is aged 65 years and has a natural born son and daughter living. Respondent No. 4 has not filed any counter-affidavit with the result that this fact has not been controverted from the side of respondents. It was conceded by Mr. Goverdhan, learned counsel for respondents 2 and 4, that Smt. Seeta Virmani, respondent No. 4, could not have legally adopted Jayanti in view of the provisions of Section 11 of the Hindu Adoptions and Maintenance Act, 1956. Thus, prima facie, it is apparent that the alleged adoption deed dated September 2, 1998 is not a valid document in the eyes of law. It appears that realising the aforesaid legal position, the respondent No. 2, in his short counter-affidavit, in order to anyhow have the custody of younger daughter Jayanti, took the alternative case that "de hors the adoption it is the respondent No. 2, father, who is the custodian and legal guardian of the said child whose sense of security and stability at this tender age lies in being with the respondent No. 2 (father) and Mrs. Seeta Virmani and hence the custody of the said child ought not to be disturbed in the present extra ordinary proceedings". We, in this petition, are not inclined to consider this alternative case of respondent No. 2 because Jayanti was recovered from the custody of respondent No. 4, who claimed to have her custody in the capacity of her adoptive mother.

19. Thus in view of above, custody of Jayanti with respondent No. 4 on the face of it appears to be illegal. Accordingly, respondent No. 4 has no case to have the custody of Jayanti and the same should go to the petitioner.

20. Coming to the defense of respondent No. 3 in respect of the elder daughter Akansha, it may be accepted that the adoption deed in respect of her may not be suffering from such illegality as is in the case of the adoption deed of the younger daughter Jayanti but the alleged adoption does not inspire confidence with us for the reasons given in the following paragraphs.

21. The petitioner has stated in this petition about the harassment meted out to her by her husband and in-laws. She also stated that by misrepresentation she was made to sign the verification clause of a mutual divorce petition but she ultimately refused to sign the main petition when she realised that the same was a divorce petition. She further stated that she was forced to sign a complaint addressed to SHO, Lajpat Nagar on 6.10.1998 at Delhi. These averments in the petition have not been specifically refuted by respondents No. 2 and 3 in their counter-affidavits.

22. Respondent No. 2, came out with an allegation that the petitioner had threatened that she wanted to get rid of Jayanti in order to have her (petitioner's) freedom and was going to send the child to some orphanage and that in those circumstances Jayanti was given in adoption to respondent No. 4. This stand taken by respondent No. 2 does not appeal to us. The facts and circumstances as stated in this petition can, in no way, give an impression that the petitioner, who is chasing her daughters so vigorously, was, in the month of September, 1998, so desperate for her freedom that she was bent upon giving her daughter Jayanti to an orphanage. We are not inclined to believe such a case of respondent No. 2. Even if, for arguments sake, there was any such threat from the petitioner the respondent No. 2 being father of the girl could have kept her in his care and custody. Adoption in favour of respondent No. 4, who was living in Delhi, was not the only solution. Parents of respondent No. 2 as well could keep Jayanti in their care. To us it appears that there was an attempt by respondent No. 2 to anyhow severe legal relationship between the petitioner and Jayanti as mother and daughter so that the petitioner could not, with ease, claim custody of Jayanti in any legal proceedings. Therefore, possibility cannot be ruled out that the signatures of the petitioner on the adoption deed in respect of Akansha were also taken by practicing fraud and misrepresentation on her as has been alleged by her. To us it appears that the petitioner has come with true facts in this regard.

23. It is prima facie not acceptable that a young mother, who is twenty three years old would give in adoption her both daughters aged respectively three years and two years and would become issueless without any rhyme or reason.

24. Respondent No. 2, for reasons best known to him, appears to have been making concealment and false statements. He relies on a mutual divorce petition (copy of which is at pages 28 to 31) which as per document at page 146, is stated to have been filed in the family court on 24.9.1998. It is the case of respondent No. 2 that the adoption deed in respect of Jayanti had been registered on 2.9.1998, but in the said divorce petition there is no mention of adoption of Jayanti by respondent No. 4 and in the prayer clause of the divorce petition custody of Jayanti had been given to respondent No. 2. It is not understandable as to when allegedly Jayanti had already been adopted by respondent No. 4 why that fact did not form part of the mutual petition for divorce especially when there is a mention in that petition that elder daughter Akansha had been given in adoption to respondent No. 3 and his wife. Why such concealment ? Further, in that petition it was stated that since August 30, 1997, the petitioner and respondent No. 2 had been living separately. Such statement of fact in that petition is palpably false because it is the admitted case of the parties that the petitioner and respondent No. 2 separated since 23.10.1998. The petitioner became wiser by not signing the mutual divorce petition. Had she signed that petition the false statements made in that petition would also have been termed as voluntary admission on her part.

25. In his bail application, respondent No. 2 concealed the fact that Jayanti had already been given in adoption to respondent No. 4 and for securing bail he took the plea that his two and a half years old daughter needed his care as there was nobody to look-after her and there was apprehensive damage of her life. It appears that respondent No. 2 takes pleas which may suit him at a particular time. The conduct of respondent No. 2 dealing with the petitioner and his minor daughters does not inspire confidence.

26. Therefore, the version of respondent No. 2 that Akansha was given in adoption to respondent No. 3 and physical giving and taking ceremony also took place has to be scrutinised with caution.

27. On perusal of the complaint dated 6.10.1998 allegedly made by the petitioner to SHO, Lajpat Nagar (Annexure P. 2 at page 32), we cannot resist ourselves in observing that it must have been signed by the petitioner under pressure. In this complaint, the petitioner had been made to say that she by her own free will was going to have her divorce with her husband. Such averment is contrary to the facts stated by the petitioner in this petition where she has stated that on 24.9.1998 she had refused to sign the mutual divorce petition at Bombay and had thus invited serious troubles for herself. Therefore, on 6.10.1998, it is not expected from her that she voluntarily wrote to SHO that she by her own free will was going to have divorce with her husband. Further it also does not appear believable that the petitioner would complain to the SHO against her own parents with the following allegations:-

"they are forcibly attempting to remove me from my aunty's place against my wishes.

Against my husband my parents have been doing all sorts of nonsense and are acting against my wishes. They are the real culprit for the divorce proceeding that we have to undergo."

28. In our view, if the petitioner can be made to sign such a complaint by family members of respondent No. 2 possibilities cannot be ruled out that the signatures of the petitioner on the disputed adoption deeds were obtained by fraud or misrepresentation. Respondent No. 3 is not a stranger to the family of respondent No. 2. He is the elder brother. All these factors should be taken into consideration while deciding this petition.

29. The alleged adoption deed relating to Akansha has the following averment:-

"and the ceremonial gift of the daughter will be performed on in the presence of attesting witnesses and several other persons who attended the function and witnesses the ceremonies of the adoption."

30. From the above averment it appears that ceremonial gift of the daughter was yet to be performed in the presence of attesting witnesses. The adoption deed does not appear to have been signed by said witnesses. It may thus be presumed that ceremonial gift of the daughter Akansha has not yet been performed.

31. Learned counsel for respondent No. 3 relied on the legal presumption enacted in Section 16 of the Hindu Adoptions and Maintenance Act, 1956 and in support cited some rulings as well. There is no dispute to such legal presumption but the fact remains that the presumption is not absolute but is rebuttable. In view of the facts and circumstances of this case as discussed above, we should not dismiss the petition solely on the basis of the aforesaid legal presumption. The problem is of human relationship dealing with the cry of a natural mother against a person who claims to be the adoptive father.

32. We know our constraints that in this writ petition we should not make a detailed examination of disputed questions of fact and also cannot declare the adoption deeds in question valid or invalid. That is the jurisdiction of the appropriate civil courts.

33. But in view of the facts of this case where due to the alleged conduct of the parties there is a doubt about the factum of adoption a question arises-whether in this writ petition custody of the minor daughters Akansha and Jayanti should be given to the petitioner who is the natural mother or should she be asked to wait for the custody of her daughters till she wins in appropriate civil proceedings before appropriate courts. Our answer is that in the facts and circumstances of this case custody of the minor daughters should be given to the natural mother till in appropriate civil proceedings appropriate civil courts give decision on the question of legality or illegality of the said adoption deeds or on the question as to who shall have the custody of the minor daughters.

34. We accordingly make the rule absolute and direct that the custody of Akansha and Jayanti shall remain with the petitioner, who is their natural mother, till the appropriate civil courts in appropriate civil proceedings decide otherwise. With these directions the petition is disposed of.

Before parting with this case, we make it clear that the observations made in this judgment and order are prima facie in nature and would not affect the merits of the respective civil cases which may have been filed or may be filed by any of the parties to this writ petition questioning or establishing the validity of the alleged adoptions or seeking custody of the minor daughters.