On October 17, 2022, the Supreme Court of India in a matter related to the custody of a baby girl child living with her foster parents for close to a decade, simply dismissed a Special Leave Petition filed by her foster parents (017765/2022) by simply observing that “We see no reason to interfere”. The dismissal of the SLP by the highest court of the land, that too in a sensitive matter where a nine-year-long custody of a baby girl has been unsettled by the Allahabad High Court, who was living with her foster parents since she was three and a half months old, appears strange. It has upended the normative universe of the minor child. It is therefore worthwhile to scrutinise it.
Considering the fact that, unlike any other custody dispute between estranged parents where the child in question knows who his/her biological parents are, in this case, the High Court itself acknowledges that “We are conscious of the fact that ….. the respondents whom she-lives with- [the child baby girl] knows as her real parents”. The High Court ruled that the ‘paramount welfare’ of the minor child lies in changing her custody.
Essential facts of the Story
A three-and-a-half-month-old baby girl (born in Jeddah, Saudi Arabia, where the biological father works), was given away by adoption to a professor and his wife in April 2014, who are issueless. The biological mother, with three more children, is the sister of the foster father. The biological mother and the foster mother are first cousins. To get the adoption legally sanctified, a notarised deed of adoption was made, wherein both parties duly signed the document along with other witnesses. [The High Court verdict (Para 14) acknowledges this as an “arrangement between the parties”]. Besides this, another document (enclosed by the biological parents in their petitions), a long email to the Consulate General of India in Jeddah, dated 25 June 2019, also admits two things: (a) that they gave away the baby with mutual consent, (b) they didn’t intend to take back the baby girl.
Records and judgment of the trial court testify that within weeks of having given away the baby girl, they asked for money through email and the payment was made through cheques. They kept spending their almost three months-long summer vacations with the baby girl at the foster parent’s home, except for the year 2019, when the biological parents filed a case of habeas corpus in the Delhi High Court. Having ‘ordered’ to meet the baby (which they chose not to meet), the case was dismissed on the ground of territorial jurisdiction. At the end of that very month, i.e., August 2019, they filed another case, under the relevant sections of the Guardian and Wards Act, 1890, at the Family Court for the custody of their daughter. By this time, August 2019, the baby girl was over five years of age and was leading a happy, good quality, and comfortable life with the foster parents, as per the records, including the records of cross-questioning (jirah) of the biological father in the trial court.
Studying this case, I am reminded of an essay (1986), Violence and the World by Robert M. Cover, which I read recently. Showing the relationship between legal interpretations and violence, Cover says, “Legal interpretation takes place in a field of pain and death” and that, “Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, and even his life”.
The strangeness, which I have mentioned above, further gets accentuated when one closely reads and compares the Allahabad High Court judgment dated September 21, 2022 with the finding of the Family Court (May 30, 2022), which was set aside by the High Court. The Family Court verdict, inter alia, categorically stated that unsettling the custody of the minor child would have a devastating effect on her physical, emotional, intellectual and psychological health.
There is not just internal inconsistency, unsubstantiated assumptions and, importantly, the wrong application of facts by the authorities in the instant case before the High Court judgment. The argument also has a major design flaw (a methodological problem in selecting the interpretative tools). To offset –and reject–all the child-centric and pro-welfare reasoning of the Family Court judgement, the High Court invoked the judicial discretion of parens patriae
Before examining the justification of invoking the judicially imposed discretionary power of parens patriae, it is important and necessary to share one more aspect of this narrative in the close to three years-long legal battle. This would perhaps shed some light on the case, of assistance in future, to couples without children looking forward to adopting a baby. In the midst of the proceedings of the Family Court, since August 2019, the biological parents initiated a criminal case of abduction against the foster parents at the executive magistrate’s court, in October 2021, concealing the civil case initiated by themselves in the Family Court. This throws an interesting question: Does the executive Magistrate have the power to take cognisance of a case when the Family Court is already seized with the matter? The High Court, in this specific separate case, granted a stay in December 2021 which came to be disposed of in December 2022. This case had already become infructuous, as it came to be disposed of only after the civil case was already decided, and complied with, in October 2022, and the baby’s custody had been unsettled.
A hasty verdict delivered on factually wrong assumptions
To begin with, the case was decided by the High Court with a lot of haste. In just two, effectively maiden hearings, the High Court closed the arguments. Such was the hurry that the High Court they did not even think it appropriate to interview the child, unlike the Family Court which interviewed the minor child in May 2022 to ascertain her wish. During this interview, the girl child, inter alia, stated that she wants to live with her foster parents and also that she cannot sleep without her foster mother. She was clear about this choosing her foster parents over going back to her biological parents, who had, by then, been meeting the baby each week in the mediation centre of the Family Court during the trial. It seems clear that if such procedural haste was not shown by the High Court, the infirmities that exist in the judgment, to which I will come shortly, could have been avoided.
While denying the plea by the foster parents’ counsel to interview the minor child, the High Court observed that “the child was denied access to her [biological] parents” and thus “as the child is living with the respondents since she was three and a half months old and barely got the chance to know her parents, interviewing her or knowing her wishes would have served no useful purpose as the child would want to remain in the custody of the person with whom she is residing who she knows as her own parents”. This observation not just reeks of assumption, but is even factually wrong and in absolute contradiction with the findings of the Family Court. According to the Family Court judgment and records, from 2014 to 2018, the foster father’s sister with her children spent every summer vacation at the professor’s (foster father) residence, where, needless to say, the baby girl too was living. It is also noted by the Family Court that for the first time, they got a visa issued in the name of the girl in July 2018, more than four years after giving away the baby girl. This specific observation of the High Court that the baby child was denied access is factually wrong.
The list of infirmities does not end here. To buttress the point of denying the interview of the baby child, the High Court cited Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka and Nil Ratan Kundu and Ors. vs Abhijit Kundu. Strangely, the facts of both cases are very different from the instant case and thus have been wrongly relied upon. In Thrity Hoshie Dolikuka, the estranged parents were litigating the custody of the daughter in which the Bombay High Court, categorically observed that “The report of the Social Welfare Expert records that the interviews, the minor girl faced before the several judges cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her”. Whereas, in Nil Ratan, the maternal grandparents were seeking custody of the grandson, fearing for his life, as there was an allegation of murder of his daughter by his son-in-law. However, in Lekha vs P. Anil Kumar, the Supreme Court has observed that “The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding the grant of custody of minor children.”
In a series of judgments such as Gaurav Nagpal vs Sumedha Nagpal by the Supreme Court, it has been held that the paramount welfare of the child includes, inter alia, mental (intellectual) and emotional well-being. Rather than appreciating the finding of the Family Court which are in line with the principles laid down by the SC, the High Court curtly observes, “The family court was swayed away by the fact that the detachment of the child from her maternal uncle and aunt who have brought her up as her own child, would have perilous effect on the physiology of the child.” (Para 31) The High Court doesn’t provide a cogent reason for making the claim that why the Family Court would have got swayed away except assuming that the child never got an opportunity to meet her parents. This point, as stated above, is factually incorrect, as per the records and the trial court verdict.
Another major flaw of the High Court judgment is the inverse inference that the High Court draws, without providing any reason when the foster parent exercised the right to appeal against a part of the Family Court judgment. The High Court notes that “The vehemence of the respondents in not allowing the child to meet her birth [biological] parents are evident from their resistance in even allowing the child to see her birth parents once in a year for 15 days”(para 31). This observation, however, is in sharp contrast with the findings of the Family Court, which has looked into the evidence, and noted that till 2018, every year, during summer vacation, the petitioners used to stay with the respondents.
It is astonishing to note that the High Court instead of taking stock of the internal inconsistency in its judgment, comes to hold the foster parents responsible. The High Court observes that the foster parents may “… have fostered the child as their own but should have allowed the child to know as to who her birth parents are, to meet them, to spend time with them….” (Para 34).
Concealing the identity of, and denying access to, the biological parents by the foster parents are the two prongs on which the High Court judgment rests. Making the case stand on these prongs, however, is factually wrong and internally inconsistent. This gets testified from the interview of the baby girl taken by the Family Court. It is not that the baby does not recognise the biological mother or know who she is. On being asked by the Family Court judge, the baby testifies that the mother who gave birth to her is her foster father’s sister (abba ki behen).
Thus, the assumption of the High Court that the identity of the biological mother was concealed from the baby girl is absolutely wrong. It comes out clearly from the baby’s testimony, which has been referred to by the High Court. That the baby girl calls her biological mother phuphi (paternal aunt) is obvious. For the baby girl has grown up over the last eight years calling her phuphi. This is how things were supposed to be if one refers to the content of the notarised deed of adoption. Also, after the Family Court verdict dated May 30, 2022, and the High Court’s interim order of June 2022, the baby girl had already lived with her biological parents for a fortnight from June 23 to July 9, 2022. This additional crucial fact also seems to have been missed by the High Court verdict of September 21, 2022, while observing that the biological identity of the baby has been concealed.
This series of internal contradictions in the judgment also suggest that the High Court has taken the words of the petitioners at face value without subjecting them to corroboration from the records as well as subjecting them to any judicial scrutiny. This may have happened due to the inordinate haste shown in the proceedings. One wonders how many such cases of baby girls have really been decided by High Courts so hastily.
The curious logic of invoking the doctrine of parens patriae
That said, now comes the most tenuous (perhaps absurd too), legal interpretative act of the High Court in this judgment. After neutralising all the child-centric and pro-welfare arguments proffered by the learned Family Court by way of the reasons stated above, the High Court invoked the doctrine of parens patriae. This doctrine gives, “… the power of the State to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection.” The High Court cites Kamala Devi vs the State of Himachal Pradesh as a precedent to invoke the doctrine of parens patriae. However, the facts of this case also, like most of the cases cited by the High Court, are not just distinct but contrary to the facts of the case in hand. In this case, the father was contesting the custody of the child, against whom the allegation was that he is a habitual drunkard, and resorted to domestic violence. In the present case, the foster parents (father, a distinguished academic, and mother a homemaker pursuing a doctoral degree), have got no such proven blemishes.
As a caveat against the unwarranted misuse of the doctrine of parens patriae, the Supreme Court while setting aside the Kerala High Court judgment in Shaheen Jahan vs Ashokan K.M. (2018) held “… the Constitutional Courts may also act as Parens Patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the Parens Patriae doctrine… “I would like to briefly state the brief facts of this case. Doing will allows us to understand the potential danger of the parens patriae doctrine and how it is predicated on a subjective understanding of actors invoking it as there is neither definition nor an understanding as to what it entails.
The question before the Kerala High Court was to ascertain the validity of the marriage of a Hindu major girl, who had converted to Islam and married Shafeen Jahan. The Kerala High Court, instead of taking the choice of the girl into account, invoking the doctrine of parens patriae, not just annulled the marriage, but observed “As per Indian tradition, the custody of an unmarried daughter is with the parents until she is properly married.”
This High Court judgment, like the Kerala High Court judgment, unjustifiably invokes the said doctrine. Doing so, afforded the chance to come up with its own understanding of the paramount welfare of this child, which, however, sharply contradicts the existing precedents on the subject. The invocation of the said doctrine in such a sensitive case even further demonstrates that legal interpretation has the potential to perpetuate violence in that a minor girl who was raised like their own daughter by issueless foster parents was uprooted from her natural environment. Importantly, the submissions of the biological parents barely put emphasis on the word, welfare, of the child. This is something pointed out clearly in the Family Court judgment, and apparently ignored by the High Court.
The reasoning of the High Court leaves one with a few of the following important questions, besides the infirmities already highlighted:
- If at all, not letting the biological parents meet the baby is the greatest concern of the High Court, then, why didn’t it uphold the Family Court decision of the 15-day annual custody to the biological parents, rather than unsettling custody itself?
- Once the notarised Deed of Adoption is acknowledged by the High Court, why didn’t it go on to validate the adoption? Could Hindu Law have provided this scope of not validating adoption/custody, despite having acknowledged the notarised deed?
- The content of the Deed has also been misquoted by the High Court. The content of the Deed doesn’t provide for the right (of meeting) to the biological parents. Yet, they were spending each summer vacation at the foster parent’s home, with the baby girl. This misquoting is a further testimony of the haste involved in the High Court judgment, despite having written it two months after closing the arguments. (Para 10 and 11)
- The High Court judgment appears to be un-imaginative when it provides for the foster parents to go to Jeddah to meet the baby. One wonders, if they won’t be allowed to meet the baby there, will the jurisdiction of the Allahabad High Court reach beyond the borders of India?
There has been a clear case of miscarriage of justice against the baby girl. This story deserves to be shared in the public domain with the additional purpose of letting it be known to all those people, without children, looking forward to adopting a baby. This heart-wrenching story also throws much light on the specific characteristics of the institution of family, besides the workings of the institution of both the judiciary and executive. This story, therefore, therefore becomes a story with a larger human interest.
The order of the High Court may be read here:
The order of the Family Court may be read here
(The author is currently pursuing Masters in Law at the Azim Premji University, Bengaluru)