CHENNAI: The Madras High Court has rejected the plea of a biological mother, a person with HIV, seeking the custody of her three-year-old child who was being taken care of by another couple since he was born.
A division bench of Justices MS Ramesh and Sunder Mohan passed the order recently taking into account the facts that the child has been with the adopted parents ever since he was born and a petition filed by the adopted mother under the Guardian and Wards Act, 1890, has been pending in the Principal District and Sessions Judge (PDJ) Court in Erode.
The bench allowed the biological mother to visit the child once a week, preferably during weekends between 5 pm and 8 pm, commencing from May 1, 2024.The bench also ordered the PDJ to dispose the petition seeking declaration of guardianship within six months.
The order was passed while closing a habeas corpus petition filed by the biological mother. She stated the child was born in July 2020 at a hospital in Erode. Her parents handed over the child to another couple in adoption since she was HIV positive. The child has been under the care of this couple since then.
She tried in vain to take the child under her custody in 2022 by filing a complaint with the police. Meanwhile, the adopted mother moved a petition under the Guardian and Wards Act, 1890, at the PDJ Court in Erode, seeking that she be appointed as the guardian of the minor boy. The case is pending at the court.
The biological mother moved a habeas corpus petition at the High Court stating that there was no valid adoption and therefore the child be handed over to her. Advocate B Mohan, appearing for the adopted mother, submitted that the child was given for adoption with the knowledge and consent of the biological mother since she was battling an HIV infection.
Pointing out that the petition for declaration of guardianship has been pending, he prayed for the court to reject the HCP. Referring to the dispute over the ‘very foundational facts’ of the case, the bench said it would not venture into adjudicating the disputed facts (over adoption).
“The boy is now aged about three years and nine 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 be retained by the fifth respondent (the adopted mother) for the present,” the bench ordered.
It, however, added that it has not adjudicated or declared the custodial rights of the adopted mother. The issue with regard to appointment of the guardian could be decided by the concerned court on the basis of the evidence before it, the bench added.