“Minor Boy Has Never Been With Biological Mother At All”: Madras HC Closes Habeas Corpus Plea Seeking Handover Of Custody
The Madras High Court closed a Habeas Corpus petition filed by the biological mother of a minor child seeking the handover of his custody.
The biological mother of a three-year-old minor boy, who was diagnosed with HIV during her pregnancy had handed over the custody of the child temporarily to the fifth respondent. The Bench clarified that, given the petitioner's status as the biological mother, the Court’s order did not pertain to the adjudication or declaration of custodial rights or the appointment of a guardian for the child.
A Division Bench of Justice M.S. Ramesh and Justice Sunder Mohan observed, “The minor boy has been under the care and custody of the fifth respondent herein right from the date of his birth and his physical custody has never been with the petitioner at all. The boy is now aged about 3 years and 9 months. At this age, when he had never lived with the petitioner, it would be in the welfare of the child that his care and custody should be retained by the fifth respondent herein for the present.”
Advocate Avinash Wadhwani represented the petitioner, while APP E. Raj Thilak appeared for the respondents.
The petitioner claimed to be the biological mother of the child and sought his return from the “illegal custody” of the respondents. However, the fifth respondent argued that the child was given in adoption with the petitioner's knowledge and consent due to her HIV infection, and thus, she had lawful guardianship over the child.
The fifth respondent had also filed a petition under Sections 7 and 8 of the Guardian and Wards Act, 1890, (the Act) seeking to appoint her as the guardian of the minor child.
While the petitioner claimed that she had handed over the custody of her minor child temporarily, the fifth respondent denied the same stating that the child was given in adoption and was now the lawful guardian of the child entitled to custody.
In the exercise of its powers under Article 226 of the Constitution, the Court decided not to adjudicate the disputed facts.
The Court observed that the child had been under the care of the fifth respondent since birth and had never lived with the petitioner, even though she was the biological mother. Therefore, the Court held that “it would be in the welfare of the child that his care and custody should be retained by the fifth respondent herein.”
Consequently, the Court allowed the biological mother to visit her minor child at the house of the fifth respondent once a week.
Accordingly, the High Court called upon the Principal District Judge to dispose of the petition under the Act.
Cause Title: XYZ v. The State & Ors.
Appearance:
Petitioner: Advocate Avinash Wadhwani
Respondents: APP E.Raj Thilak; Advocates C. Aravind and B.Mohan