T.P.S. Chawla, J.
(1) This case is a tussle over a child. The parents have filed a petition under Article 226, of the Constitution for a writ in the nature of habeas corpus. On the other side are ranged a couple to whom the mother gave the custody of the child soon after it was born. How that came about is a tale of woe engendered by the mores of our society.
(2) In or about August 1982, Devender Kaur obtained employment as a lady health visitor with the Municipal Corporation of Delhi. She was about 25 years old at that time. There, she met Ajay Srivastava who was employed as a medical laboratory technician. He was about 28. A liaison soon developed between the two, and Devender Kaur became pregnant. She was delivered of a boy on 30th May 1983 at Safdarjang Hospital, New Delhi.
(3) According to Devender Kaur, when her mother came to know of the pregnancy, she was horrified by the thought of the social stigma they would incur from the birth of an illegitimate child. In order to hide the whole affair, she sent Devender Kaur 'away till the child was born'. Even the brothers and sisters of Devender Kaur did not become aware that she was pregnant. All contact between Devender Kaur and Ajay Srivastava was barred. Thus, he had no inkling that she had conceived or given birth to his child.
(4) Immediately after the child was born, Devender Kaur's mother made arrangements to get rid of it. She was acquainted with Alfred James and his wife Saroj James. He works in 'The Statesman' newspaper 'in some technical post'. She is a nurse in a government dispensary. They already had an adoptive daughter, and were interested in adopting a boy. So, they agreed to take the child. On 11th June 1983, eleven days after Devender Kaur gave birth to the child, it was handed over to Alfred and Saroj James. Being Christians, they baptised the child, and gave him the name of Sachin A. James.
(5) The torment which Devender Kaur must have undergone is act difficult to imagine. Her natural instinct as a mother to nurture her child had to be satisfied because of the fear of the reaction of society. She lived in this state of repression for eleven months or thereabouts. And, then things changed. Ajay Srivastava got to know, it is not clear how, that she had borne his child and had given it away. He got in touch with her, and promised to marry her very soon. But, meanwhile, urgent action had to be taken to retrieve the child.
(6) On 7th May 1984, Devender Kaur filed a petition (Cr. W. No. 52 of 1984) for a writ in the nature of habeas corpus requiring Alfred and Saroj James to give back her child. In support of her petition she filed not only her own affidavit, but, also, that of Ajay Srivastava in which he said that he was the father of the child and intended to marry Devender Kaur 'shortly'. Notice of the petition was issued to the respondents for 14th May 1984. On that date the matter was adjourned to 16th May 1984 to enable the parties of negotiate a settlement.
(7) However, instead of a settlement being arrived at, the petition was withdrawn unconditionally on 16th May 1984. The division bench recorded that counsel for Devender Kaur had said that in the course of the negotiations, her client had so ' completely broken down' that little communication' had been possible with her. Counsel said that she had the impression that her client was under 'some sort of pressure to withdraw the petition'. After learning this from counsel, the bench asked Devender Kaur herself whether she wished to withdraw the petition. She answered in the affirmative. The bench then assured her that she would be given the protection of the court and 'may state freely whatever she wanted to say' she still said she wished to withdraw the petition. In these circumstances, the bench dismissed the petition as withdrawn. It was withdrawn even without an answer having been filed by the respondents.
(8) On 26th May 1984, Devender Kaur and Ajay Srivastava were married. They jointly filed this present petition on 25th June 1984. Once again they seek a writ in the nature of habeas corpus directing Alfred and Saroj James 'to hand back' the child to them. This time the petition has come to a hearing. It has been very firmly opposed by the Jameses.
(9) In answer to the rule nisi a counter-affidavit was sworn by Alfred James. He pleaded that Devender Kaur had 'voluntarily handed over the custody' of the child to them, and had said she was doing so after obtaining the consent of Ajay Srivastava. She as, also, alleged to have said that. henceforth, she and Ajay Srivastava would have no claim to the child. No document in support of this plea was filed with the affidavit. But, towards the end of the hearing, counsel for the Jameses moved an application asking for leave to place on record a further affidavit sworn by Alfred James, and prayed that it be taken into consideration whilst deciding the case. We allowed counsel to read the further affidavit, and the two annexed documents, and have considered them.
(10) The further affidavit only reasserts that the custody of the child was given to the Jameses voluntarily. It emphasises that Ajay Srivastava had also, expressly or impliedly, consented to the handing over of the child. Devender Kaur, it is said, had informed Saroj James, that both she and Ajay Srivastava 'had finally made up their mind and that there would be no reconsideration of any nature whatsoever'.
(11) The first document annexed to the affidavit is entitled 'Dead of Adoption' and was executed on 13th June 1983. It is typed on stamp papers of the aggregate value of Rs. 25.00. The contents record the 'mutually agreed' terms on which the 'natural parents' of the child, born of Devender Kaur, gave it for adoption to the Jameses. In the first recital, Devender Kaur is described as the wife of 'Shri Ajay' which was not at that time the fact. The signatories to the document were described as the 'Natural Parents' and the 'Adopting Parents'. Under the former head were typed the names 'Smt. .Devender' and 'Shri Ajay'. Devender Kaur has signed against her name. But, against the name 'Shri Ajay' there is a signature in Gurumukkhi, which we were told was that of Devender Kaur's mother. The signature of Ajay Srivastava is not found anywhere on this document.
(12) The other document annexed is an affidavit sworn by Devender Kaur on 12th May 1983. In this affidavit she avers that, with the consent of her husband Ajay Srivastava, she has given her child in adoption to her 'friend' Saroj James. She also declares that, in future, neither she nor her husband will have any right, claim or title to the said. child. It will be observed that this affidavit was sworn just four days before the previous petition filed by Devender Kaur was withdrawn on 16th May 1984.
(13) Presumbly, these two documents were taken by the Jameses only to protect themselves against the possibility of a criminal charge of kidnapping. For they knew, or must be deemed to have known, that since there is no law in India under which Christians can adopt a child, these documents were totally ineffective to achieve that purpose. A child is not a chattel and cannot be transferred, under the general law, as if it were a piece of property. Hence, in it was held that : 'A contract between the mother of an illegitimate child and another person for the transfer to that person of the rights and liabilities of the mother in respect of the child is invalid'. The reasons given were that 'it was an illegal consideration for a mother to make such a promise' because 'the law does not permit such a transfer of the mother's rights and liabilities'. The ratio decidendi of that case applies with full force to the facts here.
(14) However, counsel for the Jameses cited a passage from and contended that once a decision is taken by the parents to give a child in adoption 'it must be regarded as irrevocable'. In that passage the Supreme Court was expounding the procedure that should be followed when a foreigner wishes to adopt an Indian child. It was suggested that the parents of the child 'should be helped to understand all the implications of adoption' by a foreigner, and even after they have taken a decision they should' be given about three months to reconsider the matter. But, if they still adhere to their decision 'it must be regarded as irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated. .. . '. It is patent that this is not a statement of any proposition of law, but merely a method proposed for dealing with a problem.
(15) So far as the law is concerned, it was laid down in that 'guardianship is in the nature of a sacred trust' and a natural guardian 'cannot thereforee during his life-time substitute another person to be guardian in his place'. He may, of course, in the exercise of his discretion as guardian, 'ontrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require, it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands'. A fortiori, this must be true when a proposed adoption is not at all permissible at law.
(16) Perceiving the futility of this line of reasoning, counsel for the Jameses concentrated on showing that this was not a case in which we should exercise our extraordinary jurisdiction under Article 226 of the Constitution, but should leave the matter to be tried in the ordinary way under the Guardian and Wards Act 1890. This was the thrust of the remainder of his argument. He relied most strongly on
(17) In that case, a husband applied for a writ of habeas corpus to recover the custody of his wife who was a minor. She appeared before the court and said she had left him 'of her own accord' because of the ill-treatment she had received at his house. In those circumstances, the judges held that she had not been ' improperly detained'. Nevertheless, the husband as the legal guardian' could, in law, still obtain custody if he established that it was for the 'welfare' of the minor wife. This question, having regard to the special facts, the judges thought, could be better tried in proceedings under the Guardian and Wards Act. Consequently, in the exercise of their discretion, they refused the application of the husband. But, throughout their judgments they have repeatedly said that a writ of habeas corpus is an available remedy to recover the custody of a minor. The case merely illustrates the exercise of the court's discretion on the particular facts.
(18) Yet, even that slightly dismissive approach did not win favor with the Supreme Court in . In this case, the judges of the High Court of Bombay were, likewise, 'prima facie satisfied that the child was not illegally and improperly detained by the respondents'. They said that the 'proper forum' for determining certain 'controversial facts' was the 'civil court under the Guardian and Wards Act'. Consequently, the application for a writ of habeas corpus by the mother was refused. But, the Supreme Court reversed that decision^ They thought that none of the relevant facts was in controversy. In accordance with Mahommedan Law, which was applicable to the case, they found that the appellant was entitled to the custody of the child, no matter who the father was. They also considered what was for the welfare of the child, and said : 'The appellant as the mother can be expected to take better care of the child than the respondent'. Another consideration which prevailed with the court was that the man with whom the mother was living had acknowledged the paternity of the child; and, hence, the child could in law claim to be maintained by him, whereas no such right existed against the respondent.
(19) It is important to notice that the Supreme Court said : 'The fact that (the appellant) had a right under the Guardian and Wards Act is no justification for denying her the right under section 491' of the Criminal Procedure Code, which, too, gave power to the High Court to issue writs of habeas corpus. They also quoted with approval the following passage from Halsbury's Laws of England, Vol. Ix, Article 1201 at page 702 :
'WHERE,as frequently occurs in the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be enquired into on the return to a Writ of habeas corpus, and the custody awarded to the proper person'.
In the result, the Supreme Court made an order directing the respondents to deliver the custody of the child to the appellant.
(20) That judgment of the Supreme Court was followed by a full bench in The full bench even went further and ruled that, in exercising the power to issue writs of habeas corpus in respect of infants, the High Court functions as parens patriae, and this 'inherent' jurisdiction is unfettered by anything in the Guardian and Wards Act 1890. With respect, as at present advised, that is a proposition to which I am unable to subscribe. In India parens patriae is merely the legal theory which justifies the conferment of power over infants on the courts. It is not a jurisdiction as such. That comes from particular statutes. Similarly, the power to issue writs of habeas corpus is given by the Constitution or specific statutes, and I would doubt that it can be classed as an 'inherent' power. Moreover, all inherent jurisdiction gives way to express statutory enactment. Indeed, inherent jurisdiction only exists where the field is not covered by legislation. However, it is not necessary on the present occasion to go further into this matter and express a final opinion.
(21) Returning to the present case, the law applicable is perfectly clear. According to Explanationn (1) appended to Section 3(1) of the Hindu Minority and Guardianship Act 1956, 'any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion' is a Hindu. Here, Devender Kaur was a Sikh and Ajay Srivastava was a Hindu. Their illegitimate child was, thereforee, a Hindu, and is governed by the said Act. It is declared by Section 6 of that Act that the 'natural guardian' of a Hindu minor, both in respect of the minor's person as well as in respect of its property is 'in the case of an illegitimate boy......... the mother, and after her, the father'. It follows, that Devender Kaur was the natural guardian of the boy to whom she gave birth. Prima facie. thereforee, she is entitled to his custody.
(22) But this is subject to what is enjoined in Section 13 of that Act. The two sub-sections of that section read as follows :
'13(1).In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2)No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor'.
So, appointing or declaring a guardian, the welfare of the minor is the paramount consideration.
(23) Section 17 of the Guardian and Wards Act says more or less the same. It is true that Section 19(b) of this Act denies to the court the power to appoint or declare a guardian of the person of a minor 'whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor'. However, that section, it has been held, must yield, in the case of Hindus, to Section 13 of the Hindu Minority and Guardianship Act because the latter has overriding effect by virtue of Section 5 of the same Act : The result is that, from whichever avenue the case is approached, the decision must depend on what is for the welfare of the minor.
(24) No authority is necessary to show that the best person to rear an infant is its mother. It is so ordained by nature. Especially, when the infant is a babe in arms, as is the case here. The boy is a little over one year old. Then why should custody be denied to the mother I have already shown that the purported adoption by the Jameses is wholly invalid in law. It creats no legal obligations in them towards the child. Of course, the situation may never arise, but it did, this child would never have the legal right to be maintained by them. No one can say what the future holds. I do not think it would be right to leave a child in that situation when its real parents, who would be bound in law to maintain it, are available and eager to nurture it.
(25) On behalf of the Jameses; it was argued, that Devender Kaur and Ajay Srivastava had proved themselves unfit to be guardians of the child by their own conduct towards it. The gist of the charge against them was that they had voluntarily abandoned the child soon after its birth, or, at any rate, deliberately relinquished their rights of guardianship over it, for no flimsy a reason as social embarrasment. If the story of Devender Kaur was to be believed, she had subordinated her own judgment to that of her mother to the detriment of the child. Furthermore. for nearly a year these parents had taken no steps to get back the child, and even the earlier petition filed by Devender Kaur was withdrawn. All this, it was contended, disentitled them to the right of guardianship and the court should not come to their aid.
(26) I am not impressed with these arguments. Anyone familiar with the orthodoxy of Hindu society can easily visualise the terrible ordeal which Devender Kaur must have undergone in the situation into which she had got herself. Bearing an illegitimate child is about the worst thing that can happen to a woman, and her family, in this society. Instances are not wanting when women have been driven to commit suicide in that situation. The attempt by Devender Kaur's mother to conceal the pregnancy and cut off all communication with Ajay Srivastava, accords with the ordinary reactions of a woman of her generation and upbringing. Devender Kaur must have felt, and probably been told, that her bearing an illegitimate child would bring ignominy on the whole family and even ruin her brothers and sisters. Her ability to withstand her misfortune must have been greatly reduced by her not being able to communicate with Ajay Srivastava and know his intentions. Her pathetic state of mind, even about one year after (he child had been born. can be gauged from what her counsel told the court when the previous petition was withdrawn on 16th May 1984.
(27) Notwithstanding all the mistakes made, Devender Kaur and Ajay Srivastava have at last taken a firm stand. They are now man and wife, and want to have their child. Simply because Devender Kaur manifested the ordinary human frailties, and allowed herself to be buffeted about by others and the fear of social consequences, docs not make her unfit to be the guardian of her child. And, Ajay Srivastava by marrying Devender Kaur has shown that be is a man not without character. There is nothing to show that he ever consented to the giving away of the child. I do not think that this couple are any less fit to be guardians of their child than any other ordinary parents. They are not perfect, but which parents are
(28) It is possible that the Jameses have had a raw deal. But, they went into it with their eyes open. They must have known that they could not validly adopt this child. And. if they did not, it is their own fault. It is also probably true that, during the period of a year or a little more that they have had this child, they have genuinely grown fond of it and are unable to reconcile themselves to the thought of parting with it now. But, we have to look to the future and the ultimate welfare of the child. In my opinion, taking all things into consideration, the welfare of this boy requires that he be given back to his real parents.
(29) FURTHERMORE. I think, it is imperative that the handing over should not be delayed because the boy is still only one year old and could not yet have formed permanent attachments. With lapse of time, more complications will occur and the effect on this child is bound to be adverse. That is a very important reason why I would not send the parties to litigate in the Guardian and Wards Court as that is bound to entail more delay. Besides, I can sec little of relevance that could be shown to that court which has not already been shown here.
(30) For these reasons. I would allow this petition and order that the custody of the boy. to whom Devender Kaur gave birth. and who is presently with the Jameses, be delivered to Devender Kaur forthwith. The order can only be in her favor as she is the natural guardian since the child is illegitimate. I would make no order as to costs.