BALJINDER KAUR Vs. KARNAIL SINGH

JUDGEMENT

(1.) IN the present petition, the petitioner is seeking a writ of habeas corpus for the release of one Jagdev Singh aged 14 years who is stated to be illegally detained by the respondents. The facts giving rise to this petition are that one Kirpal Singh had two sons namely Kulwant Singh and Gurdev Singh and one daughter Baljinder Kaur. Kulwant Singh was married to Nasib Kaur and the union resulted in the birth of two sons Jagdev Singh the detenu and Harprit Singh. From the daughter Baljinder Kaur a son Guravtar Singh was born in the year 1969 who is presently settled in Canada. Kulwant Singh, died on the 5th of January 1990 and his widow Nasib Kaur is stated to have executed a deed of adoption of her son Jagdev Singh on October 26, 1980 in favour of the Guravtar Singh through her attorney Gurseval Singh, his uncle. It is also the admitted case of the parties that Nasib Kaur, the mother of Jagdev Singh detenu also died on August 25,1993. It has been averred that as Jagdev Singh had been duly adopted by Guravtar Singh, the immigration authorities were moved for allowing Jagdev Singh to enter Canada and a letter was issued by Canadian Government inviting Jagdev Singh to appear for an interview, though for some reason, the interview could not be held on that date. As respondent Karnail Singh who is the maternal grand -father of Jagdev Singh was not permitting the adopting family to meet the boy, the present petition was filed by Baljinder Kaur, mother of Guravtar Singh. In reply to the notice issued, the respondents have put in appearance and the child was also produced in Court. A preliminary objection was taken in the written statement that a writ in the nature of habeas corpus, was not maintainable on the facts set out and further that the proper remedy available was to take their chance under the Civil Law. It was also averred in the written statement that the petitioners had attempted to kidnap the detenu from his residence but the attempt had been foiled on the intervention of the villagers. It has further been stated that the respondents had filed a petition under the Guardian and Wards Act which was pending adjudication in which the petitioner Baljinder Kaur and Gursewak Singh, the uncle of the detenu had also been impleaded as parties.

(2.) IT has been argued by Mr. Bhullar that once the adoption had taken place, the respondents could not claim any right in the detenu. It was also urged that the adoption having been effected by a registered document, section 16, of the Hindu Adoption and Maintenance Act raised a presumption that the adoption was a valid one. On the other hand the learned counsel for the respondents has argued that a writ of habeas corpus was not a proper remedy and the same lay under the civil law and as such, proceedings under the Guardian and Wards Act which were pending at Faridkot provided the correct forum for the adjudication of the dispute.