Supreme Court has partially stayed an order issued by the Orissa High Court in a habeas corpus case, where the High Court had utilized its parens patriae jurisdiction to return the custody of a minor Muslim girl to her father. The apex court has also sought a response from the State government in relation to the case, which pertains to the limits of territorial jurisdiction of High Courts in habeas corpus cases.
The parens patriae jurisdiction grants courts the authority to act as the legal protector of individuals, children, or animals in need of safeguarding.
A vacation bench of the Supreme Court, comprising Justices BV Nagarathna and Manoj Misra, pronounced the stay order and demanded a response from the Orissa government. The case specifically focuses on the boundaries of territorial jurisdiction for High Courts to exercise their powers in habeas corpus cases.
The father had initially approached the Orissa High Court, alleging the unlawful detention of his child by his niece and elder sister. On April 30 of this year, the High Court had ruled that technical objections concerning territorial jurisdiction should not carry significant weight in such cases. The Court cited Article 226(2) of the Constitution, which allows it to issue writs to persons, authorities, or governments located beyond its territorial limits if a partial cause of action arises within its jurisdiction. The Court further noted that proceedings under the Guardians and Wards Act, initiated by the father's niece and sister for the custody of the child, were still pending. Consequently, the High Court directed the authorities to ensure that the child is returned to the father by the end of June.
The father resides in Rourkela, while the appellants presently reside in Bihar.
The appellants, in their submission to the Supreme Court, highlighted that the biological parents had previously abandoned the minor girl, claiming financial difficulties and expressing a lack of desire for another female child. They argued that the custody dispute emerged due to a property disagreement between the parties. Additionally, a similar plea by the mother was dismissed after being withdrawn from the Patna High Court.
The plea emphasizes that the girl herself wishes to continue residing with the appellants and alleges that the High Court mistakenly conflated the welfare of the child with custody/adoption rights.
"Even under Muslim Personal Law, the central idea for the appointment of a guardian or deciding custody matters is to consider the welfare of the minor," the plea states.
The appellants further noted that no evidence of kidnapping was found by the authorities in a criminal case previously filed by the parents.
The Supreme Court stayed the High Court's directive to return custody of the minor girl to the father, indicating that other legal questions in this context need to be thoroughly examined.
The case was filed through Advocates Akriti Chaubey and Shantanu Singh, while Advocate Shahrukh Alam represented the petitioners. Advocates Hitendra Nath Rath and Sagarika Sahoo represented the private respondents.
Case Title:
SLP(Crl) No. 7290/2023
Shazia Aman Khan and anr vs State of Orissa and ors.
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