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2012 DIGILAW 282 (MAD)

S. Mala v. Commissioner Of Police, Trichy

2012-01-18

N.PAUL VASANTHAKUMAR, P.DEVADASS

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JUDGMENT N.PAUL VASANTHAKUMAR, J. ( 1. ) THIS Habeas Corpus petition has been, filed for directing the respondents 1 and 2 to produce the petitioner's minor son by name Giridharan, aged about 4 years, before this Court and hand over the custody to the petitioner. ( 2. ) HEARD the learned counsel for the petitioner, the learned Additional Public Prosecutor and the learned counsel for the third respondent. ( 3. ) IT is stated in the affidavit filed in support of the Habeas Corpus Petition that the petitioner married her uncle's son named Siva Prakasam on 1.2.2006 and in the said wedlock, a male child was born on 15.9.2007 and they were living at Avanthiyapalayam in Erode. Her husband worked as coolie in a textile company. On 23.11.2008, the petitioner's husband died in a road accident. After the demise of the petitioner's husband, the petitioner and her son were neglected by her husband's family members. The petitioner while working in a banian company at Tiruppur, she stayed in a rental house along with her colleague one Jamuna. During that period, the petitioner was not able to take care of her one year old child Giridharan. At that time, the said Jamuna advised the petitioner that her relative, viz. Shaik Dawood, the third respondent herein and his wife are running a child home at Sangiiiandavarpuram, Trichy and informed that they are charging Rs.1,000/- per month for one child, being the cost for child care. As per the advise of the said Jamuna, the petitioner went and met the third respondent and admitted her son in the child home, from November 2009. Thereafter, she was visiting the third respondent now and then and she also paid the monthly fees of Rs.1,000/- without any default. In May 2011, the petitioner lost her job due to closure of dying industries at Tiruppur. Thereafter, she decided to go. to her own town at Viliupuram and went to Trichy to take back her son from the third respondent. At that time, she found that the third respondent, without informing the petitioner, shifted his child home to some other place. The petitioner contacted the third respondent to his cell phone, but the third respondent refused to return back her son and he also did not inform his new address of the child Home. At that time, she found that the third respondent, without informing the petitioner, shifted his child home to some other place. The petitioner contacted the third respondent to his cell phone, but the third respondent refused to return back her son and he also did not inform his new address of the child Home. IT is also submitted that the third respondent also threatened the petitioner with dire consequences If she tries to take back her son. ( 4. ) THE petitioner made a complaint to the first respondent on 23.6.2011 and requested to take action against the third respondent and rescue her son from the third respondent. THE first respondent forwarded the complaint to the second respondent and advised to take action on the petitioner's complaint. As per the direction of the first respondent, the petitioner approached the second respondent and requested to rescue and hand over her minor son to the petitioner. THE petitioner further submitted a representation before the first respondent on 1.8.2011 through registered post and even thereafter, no action was taken. Hence, she has come up with the present Habeas Corpus Petition. ( 5. ) THE Habeas Corpus Petition was admitted by this Court on 9.1.2012 and the learned Additional Public Prosecutor was directed to take notice on behalf of respondents 1 and 2. Private notice was ordered on the third respondent. ( 6. ) THE third respondent appeared before this Court and produced the alleged adoption document dated 24.2.2010, stating that the detenu was given adoption by the petitioner through the said deed. A copy of the alleged adoption deed was also produced wherein the thumb impression of the first party was put and the name mentioned is R.Punitha. THE name of the petitioner is Mala, wife of late Siva Prakasam. ( 7. ) THE learned counsel for the petitioner submitted that the petitioner's name is only Mala' and she has not signed in any adoption deed/document. THE learned counsel for the petitioner submitted that the petitioner is willing to take back the detenu along with her and she will reside in her brother's house at Villupuram. ( 7. ) THE learned counsel for the petitioner submitted that the petitioner's name is only Mala' and she has not signed in any adoption deed/document. THE learned counsel for the petitioner submitted that the petitioner is willing to take back the detenu along with her and she will reside in her brother's house at Villupuram. Since the detenu is the son of the petitioner, and the third respondent having no right over the detenu, the third respondent cannot be permitted to retain the detenu when the mother of the detenu is alive and is also willing to take her minor son along with her. THE petitioner also appeared before this Court and submitted that she will not leave her child in any other place and she is bound to look after her minor son. THE said statement is recorded. ( 8. ) THE contention of the third respondent that he is claiming right over the detenu through the alleged Adoption Deed dated 24.2.2010 is unsustainable, as admittedly, the third respondent is a Mohammedan and the petitioner (who denied the execution of the Adoption Deed) is a Hindu. It is a well settled proposition of law that creating a relationship of parentage by adoption is unknown to Mohammedan Law as the same is forbidden by the Quarn. THE Hindu Adoptions arid Maintenance Act, 1956, permits adoption by an Hindu alone. Section 7 of the Act states that any male Hindu who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. THE third respondent, being Mohammedan, he therefore, not entitled to adopt the detenu under the Hindu Adoptions' and Maintenance Act, 1956, also. THE question as to whether a muslim can adopt any person and it is legally permissible or not, was considered by the Division Bench of the Allahabad High Court in a decision in the case of Mohd. Atiq Khan v. Union of India and Others 2003 (3) AWC 1818 (Justice Markandey Katju, as he then was, and Justice Prakash Krishna). THE Division Bench relied on the the Full Bench decision of the Allahabad High Court reported the case of Muhammad Allahdad Khan v. Muhammad Ismail Khan, (1888) ILR 10 All 290 wherein it was held that among the muslims, the doctrine of acknowledgement of paternity is available and there is no question of adoption in Muslim Law. THE Division Bench relied on the the Full Bench decision of the Allahabad High Court reported the case of Muhammad Allahdad Khan v. Muhammad Ismail Khan, (1888) ILR 10 All 290 wherein it was held that among the muslims, the doctrine of acknowledgement of paternity is available and there is no question of adoption in Muslim Law. THE Division Bench also relied on the view expressed in Mulla's Muslim Law vide Chapter XVII and the principles of Mohammedan Law by Amir Ali vide Part II Chapter I. ( 9. ) IN an unreported judgment of the Karnataka High Court, made IN R.S.A. No. 2262 of 2005 dated 26.10.2009, the question regarding adoption among the muslims was considered, in which the Karnataka' High Court held that adoption by a person who is a Muslim, cannot be pleaded as there is no concept of adoption known to Muslim Law. ( 10. ) ON the basis of the above legal provisions, we are unable to give any sanctity to the alleged Adoption Deed dated 24.2.2010 which is the basis of the claim made by the third respondent to claim the right over the detenu. ( 11. ) IN fine, the Habeas Corpus Petition is allowed with a direction to the third respondent to hand over the child by name, Giridharan, aged about 4 years, to the petitioner, who is the mother of the detenu. The second respondent is directed to give police protection to the petitioner and her minor son and the person who is accompanying them, viz. cousin brother of the petitioner by name Thilesh, till they reach their residence at Villupuram. Petition allowed.