Orissa High Court

Orissa High Court: In a criminal writ petition filed under Article 226 of the Constitution of India, wherein the natural guardian, father of the minor daughter had sought issuance of writ of habeas corpus to produce the minor daughter in the Court and restore her custody to him, the Division Bench of S. Talapatra* and Savitri Ratho, JJ., allowed the petition and directed the Opposite Parties to handover the custody of the minor daughter to her father.

Factual Matrix

In the matter at hand, the petitioner’s minor daughter aged about 12 years was forcibly confined and illegally detained by the petitioner’s sister and her daughter and son in law (Opposite Parties) since 2015. The minor’s father was denied meeting his daughter despite a series of attempts made by him. He had reported the matter to the police station concerned, as well as to the Child Welfare Committee (CWC), but no positive action was taken by the authorities.

The petitioner had approached the Police station on 12-09-2015 for releasing minor daughter from illegal confinement. However, no action was taken by the Police. Later, the petitioner filed a complaint before the Court of the Sub-Divisional Judicial Magistrate, Rourkela, wherein the Police were directed to register a case and to take up the investigation. The petitioner also made a representation to the Chairperson, Child Welfare Committee, Sundargarh on 25-03-2016. It was also reported by the Investigating Officer that the minor was illegally confined in Phulwari Sharif at Patna. A search warrant was issued on 22.08.2016 but when the investigating officer visited that place, the door was found locked. The Police had submitted a final report stating that the petitioner had given the minor child to the Opposite Parties voluntarily.

Thereafter, the Petitioner approached the Court and averred that the petitioner and his daughter are governed under Muslim Law and as per their custom, adoption is strictly prohibited.

Issues, Law and Decision

(i) Whether there had been any valid adoption of the minor by the Opposite Parties?

The Court said that it has been admitted by the parties that there is no practice in the Mohammedan Law similar to adoption as recognized by Roman and Hindu system. The Court said that Section 47 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (‘JJ ACT’), relied upon by the Opposite Parties, is a secular provision. The Court also said that the primary purpose of adoption, according to the JJ Act, is rehabilitation of the children who are orphans, abandoned or surrendered.

The Court also said that even in the JJ Act, specific period has been stipulated for reconsideration by the parents of the surrendered children for returning the custody.

The Court noted that under Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937, (‘Shariat Act, 1937’) provision has been made to make a declaration-

(1) Any person who satisfies the prescribed authority:

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872; and

(c) that he is a resident of the territories to which this Act extends,

may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter, the provisions of Section 2 shall apply to the declaration and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.1

The Court said that however, no such declaration was made by the Opposite Parties regarding the minor’s adoption.

Further, the Court said that it is indeed true that a Muslim can adopt a surrendered child, but they must follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder, but not at their whim. The Court also added that generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection.

Thus, prima facie, there was no proof of adoption of the minor under the JJ Act or under Section 3 of the Shariat Act, 1937. Further, the Court said that there was no specific averment either in the writ petition or in the petition filed seeking guardianship of the minor in the court of the Family Judge that the minor was adopted following the procedure of the JJ Act.

(ii) Whether the Court has territorial jurisdiction over the subject matter or for issuing the writ of habeas corpus?

The Court perused Article 226(2) of the Constitution of India and said that the power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

Further, the Court said that this expands the authority of the Court even beyond its territorial jurisdiction, if the cause of action wholly or in part arises for the exercises of such power. Hence, the constitutional imperative is that the High Court would exercise jurisdiction in relation to the territories of which it is the High Court. To take advantage of this enlarged jurisdiction, it would be obligatory upon a petitioner to show that any cause of action or part thereof had arisen within the territorial jurisdiction of the said court.

Placing its reliance on Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 wherein it was held that when a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. The doctrine of forum non conveniens can only be invoked where the Court deciding not to exercise the jurisdiction has the jurisdiction to decide the case. The principle of forum non conveniens therefore, falls within the discretion of the Court concerned.

The Court said that in the present case, the Opposite Parties had participated in the proceeding and filed their counter affidavit. They raised the objection relating to the territorial jurisdiction. There is no doubt that the petitioner’s child was taken away from his custody from Rourkela under District of Sundargarh, Odisha. Undisputedly, in this case, the minor child was taken to another jurisdiction. As the Court found that the minor daughter of the petitioner had been taken away from Rourkela, Odisha and was not returned despite repeated demands of the petitioner, custody had turned out to be wholly illegal, in the circumstances of the case. Thus, the Court held that that a part of the cause of action arose within the territorial limit of this court. The Court also held that when the interest of the child is concerned, the Court can also exercise its parens patriae jurisdiction in as much as the child is incapable of representing herself.

Further, the Court said that while exercising the parens patriae jurisdiction for issuance of the writ of habeas corpus, the objections relating to territorial jurisdiction cannot have serious impact, in as much as the best interest of the minor must be protected by the Court and that should not be restricted by the technical objection.

When the Guardianship Proceeding is pending, whether the Court can exercise its extraordinary jurisdiction to issue a writ of habeas corpus?

The Court relied on Gohar Begam v. Suggi, (1960) 1 SCR 597, wherein the Supreme Court had categorically issued the writ of habeas corpus, as the proper remedy in the case of custody of a child.

The Court noted that the Guardianship proceedings were initiated, that the minor was purportedly adopted by Opposite Parties. The Court had also observed that no other Court had previously approved or declared adoption. In absence of legal adoption, when the petitioner, being the father, demanding custody of the minor daughter must be considered.

(iii) Whether the custody of the minor girl should be restored in favour of the petitioner?

The Court observed that in absence of adoption, the custody of the minor child was liable to be termed as illegal detention. The Court said that even the kinship relationship, as has been argued was not sufficient to deprive the parents from getting the custody of their child and the detention of the child was sought to be justified by the pretext of adoption which does not exist in fact or in law.

The Court was aware that emotional bonding was developed on account of the long stay of the minor daughter, with the Opposite Parties being one of the important factors which needs to be considered by the Court. The Court also noted that the Opposite Parties had taken good care of the minor. However, the Court said that considering the right of the petitioner and the best interest of the child, the custody of the minor daughter must be restored by way of writ of habeas corpus, if the custody of the child is not handed over to the petitioner by 30-06-2023 by the Opposite Parties.

The Court also noted that the other twin sister of the minor was living with the petitioner and thus, the petitioner had sufficient resources to take good care of the minors. Thus, the Court directed the Opposite Parties to handover the custody of the minor daughter to the petitioner at his residence at Rourkela, Sundargarh. The expenses for the journey of Opposite Parties were to be borne by the petitioner. The Petitioner was also directed to allow the Opposite Parties to visit the minor daughter at his residence whenever they propose to visit.

[Nesar Ahmed Khan v. State of Orissa, 2023 SCC OnLine Ori 2403, Decided on 03-04-2023]

*Judgment Authored by: Justice S. Talapatra

Advocates who appeared in this case :

For the Petitioner: Advocate S. Sahoo;

For the Opposite Parties: Additional Government Advocate J. Katikia and Advocate Anshuman Ray.

1. Sec 3 of the Muslim Personal Law (Shariat) Application Act, 1937, Act No. 26 Of 1937.

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