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Court noted that the child had been with the adoptive couple since birth and a petition by the adoptive mother for declaration of child's guardianship was already pending before the local court
The Madras High Court recently rejected a habeas corpus plea filed by an HIV-positive woman for her three-year-old child who had been with another couple since birth. The woman claimed that since there was no valid adoption, therefore, the child should be handed over to her.
The woman alleged that she gave birth to a baby boy in 2020 in a hospital but since she was HIV positive, her father gave the child to another couple temporarily but when she sought the child later on, the couple refused to return the child.
In 2022, the woman filed a complaint before the police to take the child under her custody, however, in the meanwhile, the child's adoptive mother moved a petition before the court of the Principal District Judge for appointment as the guardian of the child. The adoptive mother claimed that the child was entrusted to her with full knowledge and consent from the biological mother, who was grappling with an HIV infection at the time of the arrangement.
The bench of Justices MS Ramesh and Sunder Mohan said that when the very foundational facts of the case were in dispute, the high court, in exercise of its powers under Article 226 of the Constitution of India, would not venture to adjudicate upon those facts.
Court also noted that the child had been with the adoptive couple since birth. "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," court opined.
Furthermore, court pointed out that a petition under the Guardian and Wards Act, 1890 filed by the child's adoptive mother was pending before the court of Principal District and Sessions Judge.
Therefore, court closed the habeas corpus petition with the liberty to the petitioner-woman to visit the child once a week. It also directed the Principal District and Sessions Judge to dispose of the petition seeking declaration of child's guardianship within six months.
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