The Supreme Court issued a partial stay on Friday regarding an Orissa High Court order that had utilized its parens patriae jurisdiction to return the custody of a minor Muslim girl to her father in a habeas corpus case.
Parens patriae jurisdiction grants courts the authority to act as a parent for any child, individual, or animal in need of protection.
A vacation bench of Justices BV Nagarathna and Manoj Misra sought the response of the Orissa government and raised questions about the territorial jurisdiction of High Courts in habeas corpus cases.
The father had approached the Orissa High Court, alleging that his niece and elder sister had unlawfully detained the child.
On April 30 of this year, the High Court determined that technical objections concerning territorial jurisdiction should not carry much weight in such cases. It noted that Article 226(2) of the Constitution empowers it to issue writs to persons, authorities, or governments located beyond its territorial limits, provided that a partial cause of action arises within its jurisdiction.
Additionally, the Court observed that proceedings under the Guardians and Wards Act, initiated by the father's niece and sister for custody of the child, were still pending. Therefore, it directed the authorities to ensure that the child is returned to the father by the end of June.
While the father resides in Rourkela, the appellants currently live in Bihar.
The appellants argued before the Supreme Court that the biological parents had previously abandoned the minor girl, claiming financial difficulties and expressing a lack of desire for another female child.
They asserted that the custody dispute arose due to a property dispute between the parties. Furthermore, a similar plea made by the mother was withdrawn from the Patna High Court.
The plea emphasized that the girl herself wishes to stay with the appellants and that the High Court had mistakenly conflated the welfare of the child with custody or adoption rights.
"Even under Muslim Personal Law, the primary consideration for appointing a guardian or determining custody is the welfare of the minor," the plea stated.
The appellants pointed out that the authorities had found no evidence of kidnapping in a previous criminal case filed by the parents.
The Supreme Court stayed the High Court's directive to return custody of the minor girl to the father, stating that other legal questions needed to be examined in a broader context.
The appeal was filed by Advocates Akriti Chaubey and Shantanu Singh, while Advocate Shahrukh Alam represented the petitioners.
Advocates Hitendra Nath Rath and Sagarika Sahoo appeared on behalf of the private respondents.
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TAGS: Supreme Court Orissa High Court parens patriae jurisdiction custody minor Muslim girl habeas corpus territorial jurisdiction Orissa government illegal detainment appellants father niece elder sister Article 226(2) of the Constitution Guardians and Wards Act Rourkela Bihar biological parents property dispute Patna High Court Muslim Personal Law welfare of the child kidnapping stay Advocates Akriti Chaubey Shantanu Singh Shahrukh Alam Hitendra Nath Rath Sagarika Sahoo.
