The Madras High Court recently dismissed a habeas corpus petition filed by an HIV-positive woman seeking custody of her three-year-old child, who had been in the care of another couple since birth. The woman argued that, as there was no legal adoption in place, the child rightfully belonged with her.

The woman claimed that she delivered a baby boy in 2020 at a hospital. Due to her HIV-positive status, her father temporarily entrusted the child to another couple. However, when she later attempted to regain custody of her child, the couple declined to return him to her.

In 2022, the woman lodged a complaint with the police in an effort to secure custody of the child. Meanwhile, the adoptive mother of the child petitioned the court of the Principal District Judge, seeking appointment as the child's guardian. The adoptive mother asserted that she had received the child with explicit knowledge and consent from the biological mother, who was facing challenges due to her HIV infection at the time of the arrangement.

The bench, comprising Justices MS Ramesh and Sunder Mohan, highlighted that with the foundational facts of the case being contentious, the High Court, utilizing its authority under Article 226 of the Constitution of India, would refrain from delving into the adjudication of 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. 

Moreover, the court highlighted that a petition under the Guardian and Wards Act, 1890, initiated by the child's adoptive mother, was currently under consideration before the court of the Principal District and Sessions Judge.

Accordingly, the court dismissed the habeas corpus petition but granted the petitioner, the woman, the liberty to visit the child once a week. Additionally, it instructed the Principal District and Sessions Judge to resolve the petition regarding the declaration of the child's guardianship within a period of six months.