High Court of Punjab and HaryanaCRWP/12316/2024dismissed

Sunaina v. State Of Punjab And ORS

2025-05-07Mr. Justice Sandeep Moudgil12 pages

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Present:

Mr. Baani Chhibber Mahajan, Amicus Curiae with Mr. Mayank Vashishth, Advocate for the petitioner.

Mr. Jasjit Singh Rattu, DAG, Punjab Mr. Pawandeep Singh, Advocate for respondents no. 4 & 5

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The jurisdiction of this court has been invoked under Article 226 of the Constitution of India read with section 528 BNSS,2023 for issuance of writ in the nature of Habeas Corpus to release the detenue from the illegal custody of the Respondent no.4 & 5 and Respondent no. 4 & 5 be directed to immediately handover the custody of minor to the petitioner.

Factual matrix of the case unfolds that the marriage of the petitioner was solemnized with Kalu Ram, s/o Om Parkash, resident of tehsil and District Shri Ganganagar in the year 2023 but after some time differences arose between the two which compelled her to come back at

her parents house and thereafter with the intervention of respectable members of the society, Petitioner and her husband namely Kalu Ram took Panchayati divorce.

Further, during the time of Panchayati divorce, the petitioner was unaware of her pregnancy and on 17.08.2024, she gave birth to her son Bhavishya (alleged detenue) but after few days of his birth, her parents refused to take care of the child and suggested the petitioner to give her son in adoption and get herself remarried. After few months, Respondents no. 4 and 5 allegedly took away the child from the petitioner and after sometime she came to know that he family has given her son to respondents No.4 & 5 on which she made hue and cry. Hence this petition. 4.

Vide order dated 18.02.2025, keeping in view the financial status of the petitioner, this Court appointed Ms. Banni Chhiber Mahajan Advocate as an Amicus Curiae on behalf of the petitioner to assist this Court.

Counsel for the petitioner contends that the son of the petitioner has been fraudulently given in adoption to Respondents no.4 and 5 by her family members without her knowledge since she was suffering from post=partum depression and her family members forcibly took her signatures on a blank paper.

It is further contended that on knowing the truth of adoption, her family members silenced her by threats and did not let her move out of the house due to which she was unable to register any complaint and on getting the opportunity, she rushed to the police officials making an oral complaint against the respondents no. 4 & 5 but no action was taken by the police officials.

It is vehemently argued by the learned Amicus that the adoption deed dated 24.10.2024 is not registered and further, no consent of the father of the child namely Kalu Ram, s/o Om Parkash has been obtained thus this deed holds no value in the eyes of law which stands supported by this court in case titled as

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Per contra, counsel for Respondents no.4 & 5 at the very outset contends that the instant petition is not maintainable as the alleged detenue namely Bhavishya is not in illegal custody of aforesaid respondents as it can be culled out from the adoption deed dated 24.10.2024( Annexure R=4/1) , that the petitioner at her own will had given her child in adoption in the presence of witnesses, including her mother.

The photograph annexed to the adoption deed conclusively demonstrates a voluntary transfer of custody, as it explicitly depicts the petitioner and her mother actively handing over the child to respondents no. 4 and 5. This visual evidence negates the petitioner's allegation of the child being taken fraudulently, as no signs of coercion or deception are evident in the documented interaction. Given the clarity of the image and the parties' visible participation, the claim of unlawful removal lacks substantive merit and appears to be a fabricated assertion unsupported by factual or documentary evidence .

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In support of his contention, learned counsel for the Respondents no.4 & 5 places reliance upon dictum of the coordinate bench in case titled !" ! !# $%& ! '( ))'*( +, wherein it has been held that:= /34

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In addition, State counsel while relying upon the affidavit filed dated 17.03.2025, submits that petitioner Sunaina was married with Kalu Ram son of Om Parkash, resident of Sadhu Wali Ek Dee Choti in 2023. After her marriage, the relationship of petitioner became strained with her in=laws, so both husband and wife decided to live separately on 12.04.2024 with the intervention of the Panchayat and got panchayati divorce. After the said compromise, one male child (detenue in the present

! case) was delivered by petitioner (Sunaina) on 07.08.2024, as petitioner was not competent to earn her livelihood and to bring up her newly born baby so she decided to give her newly born baby to aspiring couple who can bring him up in a better environment. So she contacted Parmajit Kaur, who was working as a Nurse in Nagpal Nursing Home, Jain Nagari, Abohar to find out needy couple who wants to adopt the child. And thereafter Paramjit Kaur told the petitioner regarding respondent no.4 and 5 who are willing to adopt her male child as they have no other male child. Accordingly, on 24.10.2024, petitioner handed over the custody of her newly born baby to respondent no.4 and 5 through adoption deed dated 24.10.2024 voluntarily in the presence of the witnesses. The said adoption deed was scribed on a stamp paper of the value of Rs.1,000/= in the presence of the witnesses. The photograph was also got clicked by the petitioner and respondent no.4 and 5 at the time of handing over the custody of the male child/adoption. The said adoption deed was got attested from the Notary Public.

12.

It is further contended that presented circumstances unequivocally establish that respondents no. 4 and 5 are not unlawfully detaining the child, as the evidence (including photographic documentation) demonstrates a consensual transfer initiated by the petitioner and her mother. Jurisdiction to adjudicate petitioner's legal capacity to execute the adoption deed in her husband's absence=despite their separation=lies exclusively with the Civil Court. 13.

Heard learned counsels for the respective parties at length. 14.

In a petition seeking a writ of habeas corpus for the custody of minor children, the Court's primary consideration is to determine

( whether the current custody of the children is unlawful or illegal. Additionally, the Court must assess whether the welfare and best interests of the children necessitate a change in custody, thereby placing them in the care of another individual. It is a well=established legal principle that, in matters relating to child custody, the welfare and well=being of the child are of paramount importance to the Court.

15.

The law governing the custody of a minor is well established. When faced with complex and sensitive questions relating to a child's custody, a court must consider the relevant statutory provisions and the rights arising therefrom. However, such matters cannot be resolved solely through rigid interpretation of legal texts. Custody issues are fundamentally human in nature and must be approached with compassion and sensitivity.

16.

In such cases, the court is not strictly bound by statutory provisions, procedural laws, rules of evidence, or even judicial precedents. Instead, it must focus on identifying the most suitable guardian for the child, with the welfare and well=being of the child as the paramount consideration.

17.

When exercising its jurisdiction, the court is obligated to carefully assess various factors impacting the child's welfare. These include not only the child's comfort, happiness, health, education, and intellectual growth, but also the overall quality of the environment in which the child will be raised. Significantly, the court's evaluation must extend beyond the child's physical and material needs to encompass moral and ethical considerations, recognizing that these aspects are just as vital= if not more so=to the child's holistic development.

18.

The present petition centers on the petitioner's claim that her child, Bhavishya, (alleged detenue) was fraudulently taken from her at the age of two months while she was experiencing post=partum depression. 19.

However, a review of the available records, specifically the adoption deed dated 24.10.2024, clearly shows that the petitioner, in the presence of her mother is evidently handing over the child to respondent Nos.4 & 5as a witness, voluntarily handed over the child to respondents 4 and 5. This evidence contradicts her assertion of fraudulent removal. Furthermore, the petitioner's counsel has forcefully argued that her signatures were obtained under duress on blank papers by family members.

20.

As regards the petitioner's reliance on the judgment titled "

" is concerned this court would opine that this judgment is not applicable to the present case. In Narinder Singh (supra) the petitioner approached the court against concurrent findings of the courts below, where the validity of the documents in question had already been examined by the trial court, which had the opportunity to assess their authenticity. 21.

In contrast, the present matter involves a habeas corpus petition, which is a summary remedy. In such proceedings, this Court cannot enter into a detailed examination of the disputed facts including validity of the adoption deed, as this issue falls within the domain of the trial court and is the subject matter of separate adjudication. The summary nature of habeas corpus proceedings precludes a full=fledged inquiry into the genuineness or legality of the adoption deed, unlike in the cited judgment where the trial court had already considered these aspects.

22.

In the reply submitted by the state counsel, the state has clearly stated that, following an inquiry, it was found that the petitioner, of her own free will and consent, handed over the alleged detenue to respondents no. 4 and 5.

23.

Once the factual position is clarified before this Court, it is evident that the alleged detenue is not in the illegal custody of Respondents No. 4 and 5, as the petitioner herself evidently handed over the child to these respondents.

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This court at this juncture would place reliance upon a judicial enunciation rendered by the Division Bench of this court in -. ! , / ! wherein the court has dealt with the scope of Habeas Corpus and held as under:= 8@ $ /B+ ! =/ "

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25.

After considering the arguments presented by both parties and the relevant legal framework, this court holds that the determination of the disputed facts and the validity of the adoption is a matter for the competent guardian or civil court to decide. This writ court, operating under limited jurisdiction in

petition, cannot adjudicate upon such complex and contested issues, which require a detailed examination of evidence and an extensive trial. 26.

The scope of writ jurisdiction is confined to assessing whether the present custody of the child with Respondents No. 4 and 5 is prima facie illegal, which, in this case do not seem so. Any further dispute regarding the factum or validity of the adoption must be resolved by the

appropriate civil court, as writ proceedings are not the proper forum for such determinations.

27.

However, the petitioner is at liberty to challenge the validity and genuinity of the adoption deed, which she is claiming to have been forged on blank paper got signed from her fraudulently from her own family members.

28.

Therefore, the instant petition stands dismissed being not maintainable.

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