Rajasthan High Court
Sangita Morya Wife Of Shri Yadram ... vs State Of Rajasthan on 20 December, 2021
Bench: Pankaj Bhandari, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Habeas Corpus Petition No. 219/2021
Sangita Morya Wife Of Shri Yadram Morya, R/o 109 Rodu
Ramnagar Patrkar Colony, Mansarover, Jaipur, Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through Director General Of Police
Rajasthan, Police Headquarter, Jaipur
2. The Additional Director General Of Police, Anti Human
Trafficking Unit, Jaipur
3. The Superintendent Of Police, Jaipur, Raj
4. Sho Police Station, Mansarover, Jaipur City (South),
Jaipur, Rajasthan.
5. Rakesh Morya S/o Late Shri Sholaram Morya, Resident Of
C-18, Jda Flat, In Front Of Police Headquarter, Lalkothi,
Jaipur.
6. Sita Jajoria Wife Of Shri Kumar Morya, Resident Of C-18,
Jda Flat, In Front Of Police Headquarter, Lalkothi, Jaipur.
7. Yadram Morya S/o Shri Sholaram Morya, R/o Flat No. G-
3, Mannat Ashiyana, Plot No. 119-120, Choudhary
Roduram Nagar, Near Patrakar Colony, Mansarovar, Jaipur.
----Respondents
For Petitioner(s) : Ms. Sujata Kumari Nagar
For Respondent(s) : Mr. Ram Manohar Sharma with
Mr. Ramanuj Sharma
Mr. Anshuman Saxena
Mr. Subhash Chand (S.I.), P.S.
Mansarovar, Jaipur (South)
Mr. Pawan Kumar
Ms. Kusum
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
20/12/2021
1. Petitioner has preferred this habeas corpus petition with a
prayer that the custody of her adoptive daughter be given to her.
2. It is contended in the petition that petitioner is the adoptive
mother of the corpus. Respondents No.5 and 6 are the biological
father and mother, who had given the child in adoption by
(2 of 4) [HC-219/2021]
registered adoption deed dated 15.03.2018. It is also contended
in the petition that on 21.06.2021 which was seventh birthday of
the adoptive daughter, she was forcefully taken away by
respondents No.5 and 6, on which petitioner approached the
police but when police did not register the FIR, she filed a
complaint before the Court. Thereafter, FIR No.439/2021 was
registered.
3. It is contended by counsel for the petitioner that petitioner is
the adoptive mother. There is some dispute between the adoptive
mother and adoptive father and both are living separately, despite
the said fact, biological parents have no rights to take away the
child by force.
4. Counsel for the petitioner has placed reliance on Vivek
Singh vs. Romani Singh (Civil Appeal No.3962/2016) decided by
the Apex Court on 16.05.2018.
5. Counsel for the respondents No.5 and 6 (biological parents)
contends that the welfare of the child is with respondents No.5
and 6. They have a son who happens to be brother of the child
and the child is very happy with her brother.
6. Counsel for the respondent No.7 (adoptive father) contends
that adoptive father has the first right to keep the child and he has
handed over the child to his brother and sister in-law (respondents
No.5 and 6), who are the biological parents.
7. It is also argued by counsel for the respondents that
petitioner is not having any means to look after the child and
welfare of the child is to be seen before giving custody of the
child. It is also argued that habeas corpus petition would not lie, if
there is no allegation in the petition that there is threat to the
child.
(3 of 4) [HC-219/2021]
8. Counsel for the respondents has placed reliance on (2018)
2 SCC 309 Prateek Gutpa Vs. Shilpi Gupta & Ors. and W.A.
No.1072/2019 Sanjana Soviya vs. State of Madhya Pradesh
& Ors., decided by the Madhya Pradesh High Court on
19.01.2021.
9. We have considered the contentions and had a detailed
communication with the corpus in the chamber.
10. As far as legal question is concerned, in the present case it is
not in dispute that respondents No.5 and 6 are biological parents.
Petitioner is the adoptive mother and respondent No.7 is adoptive
father, as the child was given in adoption vide registered adoption
deed dated 15.03.2018 by respondents No.5 and 6.
11. Judgment cited by counsel for the respondents Prateek
Gupta (Supra) was a case where there was inter-country dispute
and the dispute was between the parents. The cited judgment
would not apply in the facts of the present case as here the
dispute is not between the parents, but between the biological
parents and adoptive mother.
12. Sanjana Soviya (Supra) was a case, where the adoptive
mother was seeking custody of the child. It was held by Madhya
Pradesh High Court that it was disputed whether the adoption
deed is genuine or not. The said judgment also does not apply to
the facts of this case as here it is not disputed that the child was
given to the petitioner and respondent No.7. Biological parents
after giving their child in adoption have no right over the child as
by adoption their ties are severed. It is specific case of the
petitioner that the child was with her and on her seventh birthday,
she was forcefully taken away, for which, petitioner filed a
complaint and an FIR was also registered.
(4 of 4) [HC-219/2021]
13. After communicating with the child, we have gathered that
the child was staying with the petitioner, the child appeared to be
under immense pressure but after having spoken to her for over
an hour, she got relaxed, talked to her mother and expressed her
wish to stay with the petitioner, her adoptive mother. It is also
revealed from her interaction that she was staying at Mansarovar,
Jaipur with the present petitioner and respondents No.5 and 6
were staying at Lalkothi, Jaipur.
14. The contention of counsel for the respondents that adoptive
mother and adoptive father are living separately and there is
matrimonial dispute between them and adoptive mother is not in a
position to look after the child, cannot be made a ground for
denying the custody of the child, as she has a right to claim
maintenance from her husband for maintaining the child.
15. Respondent No.7 has not taken the custody of the child and
in his reply, he has stated that the child is being looked after by
respondents No.5 and 6. Since, adoptive father has not kept the
child and has given the child to respondents No.5 and 6, the only
person who can now have the custody of the child is the present
petitioner.
16. We are of the clear view that custody of the child with
respondents No.5 and 6 tentamounts to illegal detention, hence,
we deem it proper to allow the habeas corpus petition.
17. Habeas Corpus Petition is accordingly, allowed. Custody of
the child is handed over to the present petitioner-adoptive mother.
(CHANDRA KUMAR SONGARA),J (PANKAJ BHANDARI),J
CHANDAN /92
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