Ms. ELIZABETH THOMAS THOPPIL v. LATE MRS. CLARA THOPPIL

(BY SRI. LAKSHMISH G., ADVOCATE FOR R1, R3 & R13; SRI. B.A. BELLIAPPA, SPP-I WITH SRI. M.V. ANOOP KUMAR, HCGP FOR R6 TO R10 & R15; SRI. M.A. SEBASTIAN, ADVOCATE FOR R14; SRI. K.B. MONESH KUMAR, ADVOCATE FOR 11 & R12; R4 & R5 ARE SERVED) THIS WP(HC) IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, 1950 , BY THE PETITIONER, WHEREIN HE PRAYS THAT THE HON'BLE COURT MAY BE PLEASED TO (a) ISSUE A WRIT OF HABEUS CORPUS OR ANY OTHER WRIT OR ORDER TO THE RESPONDENT Nos.1 TO 10, 13 AND 16 TO PRODUCE THE SON OF THE PETITIONER NAMED MR. THOMA DOMINIC TO THIS HON'BLE COURT ON A DAY SO FIXED BY IT AND LET HIM DECIDE IF HE WANTS TO GO WITH THE PETITIONER WHO IS HIS NATURAL MOTHER AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: AND COMING ON

12.02.2025 CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 6 CAV JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This Writ Petition is filed by the petitioner, seeking for issuance of a writ of habeus corpus to respondent nos.1 to 10, 13 and 16 to produce the son of the petitioner named Mr. Thoma dominic before this Court and let him decide if he wants to go with the petitioner, who is his natural mother.

2. Heard Shri. Jose Jacob Olekkenjil, learned Counsel appearing for the writ petitioner, Shri. Lakshmish G, learned counsel appearing for respondents No.1, 3 and 13, Shri. B.A. Belliappa, learned SPP-I along with Shri. M.V. Anoop Kumar, learned High Court Government Pleader appearing for respondents No.6 to 10 and 15, Shri. M.A. Sebastian, learned counsel for respondent No.14 and Shri. K.B.Monesh Kumar, learned counsel the party respondents No.11 and 12.

3. In the writ petition, it is contended that the petitioner, a semi-literate and poverty-stricken woman from Kerala, studied only up to 7th grade in a Malayalam-medium Government School. At the age of 15, she was seduced by - 7 one Lonappan alias John Matthew and became pregnant. Subsequently, he abandoned her by placing her alone on a train to Bengaluru. The petitioner gave birth to a healthy son, named Master Thoma Dominic at St. Michael's Convent and Home, located in Indira Nagar Layout, Bengaluru, on

29.10.1984, at approximately about 11:30 am.

4. The baptism of the petitioner’s son was performed by Reverend Father Simon Misquith in the chapel of St. Michael’s Convent and was subsequently registered at the Resurrection Church at Indira Nagar, Bangalore. The petitioner later requested a baptism certificate respondent No.14 - the parish priest. It is submitted that respondent No.14, however, refused to provide the baptism certificate. The petitioner resided at St. Michael’s Convent until her son was 4.5 years old, earning a livelihood by working as a servant. During this time, her son won an award for being the best-looking child in a local competition organized by nearby churches. This event allegedly motivated respondents No.2, 4 and 5 to kidnap her son and hand him over to a Keralite couple - respondent No.16 and - 8 his alleged wife without the consent of petitioner. It is submitted that on 29.06.1989, the petitioner was forcibly evicted from the Saint Michael's Convent Home at Bengaluru on 29.06.1989. Despite making several oral and written complaints to the jurisdictional police from 29.06.1989 till date, the petitioner received no relief.

5. It is contended by the petitioner that her son was fraudulently adopted without her consent through forged documents, in violation of her fundamental rights as a mother. The Saint Michael's Convent has been engaging in fraudulent activities, including the creation of forged wills and codicils probated in Courts, siphoning off Crores of public funds and misappropriating lands and other assets. The petitioner's rights were disregarded and her son's adoption was facilitated through manipulation and deceit by the respondents. It is also the contention of the petitioner that the biological mother has a claim over her child, irrespective of economic disparities.

6. It is also contended that the unlawful detention and brainwashing of her son for 34 years constitute gross - 9 violations of her and her son's fundamental rights. The petitioner submits that she was misled and defrauded by several advocates while pursuing her son's case. She alleges that her forged signatures were used by the respondents No.1 and 2 to fraudulently obtain an adoption order from the Family Court at Bengaluru. She contends that any decree obtained under such circumstances is void, as it was procured through forgery and fraud.

7. It is contended that on 14.06.2024, respondent Sister Alice informed the police that she had seen the petitioner and her son, Thoma Dominic, residing at Saint Michael’s Convent and Home. However, conflicting statements from the respondents cast doubts on the authenticity of records produced. It is stated that the petitioner has faced mockery and ridicule from police officers, including respondent No.9 - Police Inspector Harsh P.C., who taunted her regarding her son’s well-being and appearance. Hence, the present writ petition.

8. The learned counsel appearing for the petitioner has relied on the following decisions of the Apex Court:- - 10 • Ranjit Singh v. The State of Pepsu (now Punjab) reported in AIR 1959 SC 843; • Mohd. Ikram Hussain v. The State of U.P. and others reported in AIR 1964 SC 1625; • K.D.Sharma v. Steel Authority of India reported in (2008) 12 SCC 481; • Narmada Bai v. State of Gujarath and Others reported in (2011) Cri. LJ 2663; • X v. The Principle Secretary, Health and Family Welfare Department and another reported in 2022 Live Law (SC) 621; • Indian Bank v. Satyam Fibres (India) Pvt. Ltd. reported in (1996) 5 SCC 550; and • Sachidanad Pandey and another v. State of Bengal and others reported in (1987) 2 SCC 295.

9. The learned HCGP appearing for the official respondents submits that the petitioner has approached this Court for the first time after an extraordinary delay of more than three decades and that her contentions are totally vague. It is submitted that at this distance of time, making any meaningful investigation into the allegations raised by the petitioner is virtually impossible. It is contended that the Writ Petition is totally devoid of details and in the nature of - 11 the vague allegations raised by the petitioner, it is not possible for the Police to conduct any investigation at this distance in time.

10. It is stated in the status report filed by the learned HCGP that on the basis of the orders passed by this Court, the statements of the writ petitioner as well as the fourth respondent were recorded. The fourth respondent had admitted that she knew the petitioner and the petitioner and her child were staying in the St. Michael's Convent. But it is stated that she does not know the whereabouts of the petitioner's child and no information is available with her. She also states that she does not know the 16th respondent or any of the other persons referred in the Writ Petition.

11. The learned counsel appearing for the party respondents would submit that the birth registers of the year 1982-84 and the adoption register of the year 1988-90 do not contain any record of a birth or adoption as alleged by the petitioner. - 12

12. It is further contended that the petitioner’s allegations are totally unsubstantiated and are made solely to harass the respondents and the institution. The petitioner is put to strict proof of the allegations. Additionally, the respondents categorically deny any involvement or knowledge of the alleged kidnapping of the petitioner’s son from any place in the year 1989.

13. It is contended that the petitioner has failed to provide credible evidence linking the respondents to the alleged act of kidnapping or proving that she reported the alleged incident to any authority since 1989. It is also contended that the writ of habeas corpus is intended to address instances of unlawful detention. In the present case, the petitioner has neither demonstrated respondents have unlawfully detained her son nor provided evidence to support the claim that they have any knowledge of his whereabouts. Mere assertions without proof are insufficient to justify legal action or the issuance of the writ sought by the petitioner. - 13

14. It is contended by the learned counsel appearing for respondent No.14 that, respondent No.14 confirms having responded the petitioner's request dated

30.11.2023 by stating that the baptism certificates of her son, Thoma Dominic born on 29.10.1984, were not found in the record book of the Church. He also clarifies that a baptism certificate only confirms whether a person was baptized in the Church. It does not contain information on the present status or whereabouts of the baptized person. Additionally, the accusation that respondent No.14 is liable for punishment under the IPC is, misconceived.

15. It is also contended that he was not involved in any of the transactions, contacts or allegations mentioned in the writ petition. Having taken charge of Resurrection Church, Indira Nagar, in the year 2019, respondent No.14 has never met the petitioner, her representative or her alleged son. The petitioner’s false complaint and baseless allegations appear to be an attempt to harass respondent No.14. - 14

16. The learned counsel appearing respondents has relied on the following decisions of the Apex Court:- • Tridip Kumar Dingal and Others v. State of West Bengal and Others reported in (2009) 1 SCC 768; and • State of Maharashtra v. Digambar reported in (1995) 4 SCC 683.

17. We have considered the contentions advanced on either side. The contention of the petitioner is that she had given birth to a baby boy on 29.10.1984 and was an inmate of the Convent in question. While so, she contends that her signature in blank papers were obtained and her child was given in adoption some time in 1989.

18. Though, the learned counsel for the petitioner attempted to contend that the petitioner was in abject penury and unable to approach the Court or the Police in time, the affidavit filed in support of the Writ Petition reads as follows:- "I, ELISABETH THOMAS THOPPIL also known as ELSIE daughter of late Mr. Thomas Thoppil & late Mrs. - 15 Clara Thoppil, Christian, major by age, by profession a former house servant and presently a small level Land Lady having permanent residential address at 1st Floor new #86 "THHYKIL THOPPIL CHATEAU", IIIrd Cross Road, 20 Feet Road, Geethanjali School Lay Out, Kaggadasapura, K.R. Puram, C.V. Raman Nagar Post Office, Bengaluru - 560093, Karnataka. E-MAIL id: thoppilelisabeth@gmail.com Mobile # 9606509726 do hereby affirm and state as follows: I state that I am the petitioner herein and am well conversant with the facts of 76 the case. The contents of paragraph 1 to 76 in page #s 1 to 34 and "ANNEXURES A to G" are true and correct to the best of my knowledge, information and belief."

19. Further, the relevant pleadings in the Writ Petition are as under:- ”17. The petitioner was residing at the Saint Michael's Convent Home till her son became about 4.5 years. And petitioner was suckling him with her servant's salary. So the new rudderless story spun by the respondent # 1 to the archbishop /respondent # 13 is against presumption laid down in section 114 of the Indian Evidence Act 1872.

18. At this point in time the child won an award being the best good looking child in a competition held for children belonging to the nearby churches. This winning catalysed the respondent #s 2,4 and 5 to kidnap the petitioner's son's and give him to an alleged Keralite - 16 couple/Respondent # 16 and his alleged wife without permission of the petitioner and in stark contrast with the consent of the petitioner required and contravention of sections 14,17,18,19 of the Indian Contract Act, 1872 and even without an order from the Family Court at Bengaluru.

19. Immediately, after son of the petitioner was kidnapped and petitioner was ejected from Saint Michael's Convent Home at Bengaluru on 29.6.1989 without even an ex-parte order of the City Civil Court an oral complaint was lodged by the petitioner to the jurisdictional Station House Officer/S.H.O. and the Sub Inspector of the Indira Nagar Police Station about the kidnapping of the son of the petitioner and her ejectment above mentioned in terms of section 154(1) Cr.P.C.

20. But the jurisdictional police did not reduce her oral complaint to writing nor read it out to her and take her signature as required by section 154 (1) Cr.P.C.,1973 because of being bribed and influenced by the respondent # 2 and others in terms of presumption laid down in section 114 of the Evidence Act, 1872.

21. From 29.6.1989 to date several oral complaints, some written complaints were given to the jurisdictional police and several personal visits to the jurisdictional police station were made but to no avail."

20. Thereafter, several complaints submitted before the respondents No.6 to 13, are produced along with the - 17 Writ Petition. It is pertinent to note that the earliest of such complaints are dated 08.06.2022.

21. This Writ Petition (HC) is filed in the year 2022. The details provided in the Writ Petition are totally vague. It is pertinent to note that respondent No.16, who is alleged to have taken the child in adoption has been identified in the Writ Petition only by name and no address whatsoever of the said person is forthcoming even in the cause-title of the Writ Petition. We notice that though it is contended that the complaints had been preferred by the petitioner before the jurisdictional police, none of such complaints are produced along with the Writ Petition. In the complaints produced along with the Writ Petition, the allegations are essentially totally vague and no details are forthcoming.

22. The contesting party respondents have filed objections to the Writ Petition. The HCGP has also placed available materials and status reports on record. We have perused the same. While it may be true that the Writ Petitioner has some manner of grievance, the Courts of Law or the Police cannot aid her in the absence of proper - 18 material. The petitioner has approached the Writ Court, more than 32 years after the alleged incidents have occurred. At this distance of time, requiring the police to trace out a person or to investigate a crime without even the bare necessary details is an impossible task.

23. From the materials placed on record by the learned HCGP, it appears that the Police have made enquiries with the party respondents and the St. Michael's Convent Home in respect of the complaint submitted by the petitioner. The extract of register of all admissions made by the St. Michael's Convent Home for the year 1984 as well as the extract from the register of all children given in adoption by the St. Michaels Home for the year 1989 have been made available to us along with the statement.

24. The first respondent has also filed an affidavit stating that she does not know who respondent No.16 is. The death certificates of respondents No.2 and 5 are also placed on record. Though the learned counsel for the petitioner submits that the death certificate produced is not of respondent No.5, there is nothing to show that there was - 19 a Gynecologist by name of Sister Ison in the care of the first respondent at the relevant time.

25. With the pleadings as presently available, we are of the opinion that requiring the police to do anything further in the matter, would be an impossible exercise. We are of the opinion that the prayers as sought for cannot be granted. The writ petition fails and the same is accordingly dismissed. All the pending interlocutory applications, if any, shall stand disposed of. The records which are made available by the learned counsel appearing for respondents No.1, 3 and 13 shall be returned on proper authorization and identification. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE cp*