Sunday, June 26, 2022

Supreme Court upholds Rajasthan HC order on custody of child in tussle between biological parents and adoptive parents

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The Supreme Court on Friday upheld a Rajasthan High Court order which had held the custody of a child with “biological parents” is tantamount to “illegal detention” in view of legal adoption deed and hand over the custody of the child to her adoptive mother. 

The two-judges bench of Justices S. Abdul Nazeer and Aniruddha Bose dismissed the plea of the biological mother of the girl child who sought custody of her daughter from the custody of adoptive mother. The petitioner, Sita Jajoria, has challenged the order dated 20.12.2021 of Rajasthan High Court wherein the custody of the child was handed over to adoptive mother Sangita Morya.

Advocate Ramanuj Sharma, who appeared for the petitioner, submitted that the welfare of the child should be of paramount consideration.

Justice Nazeer told the counsel that there is no legal contentions involved in this petition.

Justice Bose further while dismissing the Special Leave Petition was of the opinion that case involves only the question of fact and not the law.

The Rajasthan High Court came to the finding after communicating with the child for over an hour, that the child was residing with her adoptive mother Sangita Morya and she wished to stay with her at Mansarovar, Jaipur.

The reliance upon Sanjana Soviya case placed by biological parents was rejected by the High Court stating that the issue involved in that case was related to dispute whether the adoption deed is genuine or not.

“Biological parents have no prerogative over the child when the said child is given for adoption,” observed the Rajasthan High Court.

The contentions of adoptive mother raised before the Rajasthan High Court were that her child was forcibly taken by her mother Sita Jajoria on the 7th birthday.

The contentions of biological father Rakesh Morya and mother Sita were that Yadram Morya, who is adoptive father of the child, was not residing with his wife Sangita Morya due to some matrimonial dispute and hence in such situation, adoptive mother is not in a position to take care of the child and also she does not have any means to look after child.

Rakesh and Sita also have a son and their daughter is very much happy with her brother, the biological parents contended before the High Court.

The question of maintainability of Habeas Corpus Writ Petition was raised by the biological parents of child before Rajasthan High Court stating that if there isn’t any threat to the child, habeas corpus will not lie.

Interestingly, Yadram Morya, who is adoptive father in this case, had raised his point that he has first right to keep the child, therefore he had handed over the child to his brother Rakesh Morya and sister-in-law Sita Jajoria, who are the biological parents of child.

The facts of the case are that initially, the custody of the girl child was handed over by biological father and mother to adoptive mother by way of adoption deed dated 15.03.2018. The complaint of adoptive mother Sangita Morya on the 7th birthday of her adoptive daughter made before the police as the child was forcibly taken away by her biological parents, however, no action was taken on the said complaint.  

Later, the adoptive mother Sangita preferred court complaint before the court and an FIR no.430/2021 was registered.

The High Court of Rajasthan at Jaipur allowed the habeas corpus plea of adoptive mother Sangita Morya.

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