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2019 DIGILAW 532 (ORI)

Swarnalata Mishra v. State Of Odisha

2019-08-19

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT : A. K. Mishra, J. This writ for habeas corpus is filed by the mother petitioner seeking custody of her tiny tot daughter. 2. Narrated in a nutshell, the grievance of the petitioner is that on 19.07.2016 she gave birth a girl child in the Moon Hospital, Cuttack. On 31.03.2017 at 7 A.M., while the baby was sleeping on the outer verandah of her house and she was busy in the household work inside, opposite party no.4 Ganeswar Nayak came in a vehicle bearing registration No.OR-05-AR-6120 and took away the baby. The petitioner clamored for rescue of the child but it was in vain. Later she came to know that opposite party no.4 had sold her daughter to opposite party no.5 Biswajit Nayak for a consideration of Rs.20,000/-. The petitioner made efforts to get back her daughter but opposite party no.5 refused to hand over the custody of the child. The petitioner lodged written F.I.R. before the I.I.C., Athagarh Police Station (Opposite Party no.3) but the same was not registered. Police did not respond to her repeated request. Petitioner sent the written F.I.R. by registered post vide Annexure-3 to opposite party no.3. Even on 19.6.2017 she sent e-mail to Superintendent of Police, Cuttack vide Annexure-4. On 27.6.2017 the petitioner brought the inaction of the I.I.C., Athagarh to the notice of Superintendent of Police, Cuttack. Being unsuccessful in all her efforts, she filed this writ petition on 12.07.2017. 3. On behalf of opposite party nos.2 and 3, the I.I.C., Athagarh Police Station filed counter affidavit. It is stated therein that the petitioner was the mother of 3 girl children. The baby in question was her 4th issue. Further it is stated that as per the Panchayatnama, the petitioner while returning home by the Ambulance of opposite party no.4, asked the driver, opposite party no.4 either to handover the baby to somebody else or to leave the baby in any orphanage and to keep the matter in secrete. The opposite party no.4 instead of working out the proposal of the petitioner, handover the newborn baby to the wife of opposite party no.5, namely Bismita Nayak who accepted the baby as her new daughter and celebrated all functions normally done in every family in the eve of newborn child. Thereafter the petitioner mother did not enquire about the child. She deserted the child declaring that a dead female child was born. Thereafter the petitioner mother did not enquire about the child. She deserted the child declaring that a dead female child was born. She even observed the obsequies ceremony for the dead child. There was a ‘Panchayatnama’ in presence of about 100 villagers on 18.06.2017 vide Annexure-A/3. It was mentioned therein that the petitioner having not performed her duty towards the baby child and having acted in cruel manner, was not entitled to the custody of the child. Further it is stated in the counter affidavit that Athagarh P.S. Case No.161 dtd.18.7.2017 has been registered and is under investigation. 4. Opposite party nos.4 and 5 have filed joint counter affidavit duly sworn by opposite party no.4. It is stated therein that opposite party no.4 being the Ambulance driver, had taken the petitioner with her husband to Moon Hospital. On 19.7.2016 the petitioner gave birth to a girl child. She did not want to keep the child and approached number of persons and Hospital staff to take the girl child or else she would kill her. Nobody agreed. She along with her child and husband returned home in the Ambulance of opposite party no.4. On the way, the petitioner attempted to throw the child in Sapua River. She was restrained by opposite party no.4. The petitioner requested opposite party no.4 to keep the child with a promise not to disclose before any villagers as she would declare that a dead child was born to her. Opposite party no.4 assured that he would keep the child with his cousin brother and accordingly since 19.7.2016 the child has been residing under the care and custody of opposite party no.5. It is further stated in the counter affidavit that opposite party no.5 is serving as Havildar in Indian Army and his wife Bismita Nayak has adopted the child performing 21st day celebration and the child has been named. The child has been given immunization at P.P.C., Athagarh. At the same time the petitioner has already performed the obsequies ceremony to show that a dead child was born to her. It is further affirmed in the counter affidavit that opposite party no.5 has no daughter. She has only one son. He and his wife have been keeping the baby girl with all care and affection as parents. At the same time the petitioner has already performed the obsequies ceremony to show that a dead child was born to her. It is further affirmed in the counter affidavit that opposite party no.5 has no daughter. She has only one son. He and his wife have been keeping the baby girl with all care and affection as parents. Further it is stated that the husband of the petitioner is a drug addict and taking advantage of the weakness and manly attachment of the wife of opposite party no.5 with the child, on 29.03.2017 at the instance of some mischievous persons, he demanded a sum of rupees two lakhs towards custody of the girl child. The opposite party no.5 who happens to be a cousin brother of opposite party no.4 intimated the villagers the above facts. As a result, a village meeting was held. It was decided therein in presence of petitioner and her husband and other villagers that the custody of girl child would be continued with opposite party no.5. The allegation of theft and sale of the child, as made by petitioner, is categorically denied by opposite party nos.4 and 5. 5. The petitioner has filed rejoinder affidavit denying the allegation made by opposite party nos.3, 4 & 5. It is stated that in the so called ‘Panchayatnama’ (Annexure-A/3) the petitioner has not signed and it was a fabricated document prepared in response to the F.I.R. to protect opposite party nos.4 and 5. After passing of direction of personal appearance in this Court, the F.I.R. was registered vide Athagarh P.S. Case No.161 of 2017 and police has not conducted proper enquiry. 6. Learned counsel for the petitioner submits that; (i) Mother of the child being the natural guardian is only entitled to have the custody of the baby child. (ii) The child was born on 19.07.2016. On 12.06.2017 grievance was made before police. This writ petition was filed on 12.7.2017. By then the baby child was less than 1 year and the child should not have been kept out of biological mother as she was a sucking baby then. (iii) The claim of adoption of child by opposite party no.5 is self proclaimed illegality which should not be perpetuated at the cost of child's welfare. By then the baby child was less than 1 year and the child should not have been kept out of biological mother as she was a sucking baby then. (iii) The claim of adoption of child by opposite party no.5 is self proclaimed illegality which should not be perpetuated at the cost of child's welfare. (iv) The date of registration of F.I.R. after filing of this case and the 'Panchayatnama' in which neither the petitioner nor her husband has signed is proof of the fact that police, in collusion of opposite party no.5, has created such document to show that petitioner mother had abandoned and was not in a condition to provide better life to the child. 7. Learned counsel for opposite party nos.4 and 5 submits that; (i) Writ for habeas corpus is not maintainable as the petitioner has alternative efficacious remedy and factum of abandonment and kidnapping is required to be established by evidence. (ii) The welfare of the child is a paramount consideration in deciding the custody of the child and natural and biological mother has no preemptive right in respect of a child to whom she has abandoned in a cruel manner. (iii) The opposite party no.5 and his wife have not only adopted the child but also have provided all sorts of comfort for the upbringing of the baby child. The interest of the child would be jeopardized if her custody is handed over at this juncture. In support of his contention, learned counsel has relied upon the decision of Hon'ble Apex Court, Anjali Kapoor (Smt) Vrs. Rajiv Baijal, 2009 (7) SCC 322 and decision of Division Bench of Hon'ble Madhya Pradesh High Court (Jabalpur Bench) in the case of Tabassum Bano (Smt.) Vrs. State of Madhya Pradesh and Ors, 2009 (4) MPHT 215 . 8. Within the scope of writ for habeas corpus, a writ court can adjudicate the jurisdictional facts, not adjudicatory facts which are required to be assessed on establishment of facts by evidence. There is no dispute that the baby child was born in the Moon Hospital, Cuttack on 19.07.2016. By the time of filing of this writ petition on 12.07.2017 admittedly the baby child was in the custody of opposite party no.5. By then she was less than 1 year old. There is no dispute that the baby child was born in the Moon Hospital, Cuttack on 19.07.2016. By the time of filing of this writ petition on 12.07.2017 admittedly the baby child was in the custody of opposite party no.5. By then she was less than 1 year old. On 08.09.2017, as this record reveals, the child was produced in the court by opposite party no.5 and as an interim measure the custody of the child was allowed to be continued with opposite party no.5 and his wife till further direction. There was a mediation between the parties but it was unsuccessful. On 23.3.2018, on the apprehension of the petitioner about safety of the child, the court directed opposite party no.5 and his wife to ensure proper care of the child with further direction that "they shall be responsible for any untoward incident affecting the child." 9. In view of the age of the baby child, she was unable to express an intelligent preference about her custody. In Sangeetha L. Vrs. The Commissioner of Police, Kochi and Ors, 2002 AIR(Ker) 16 it has been held at paragraph 21 as follows:- "21. It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children. Reliance may be placed on the decisions, Rosy Jacob V. Jacob A. Chakramakkal, 1973 (1) SCC 840 ; MANU/SC/0260/1973, Jai Prakash Khadria V. Srinath Prasad V. Nandamuri Jayakrishna, 2001 AIR(SCW) 1033. Some of the cases are coming under the Guardians and Wards Act. Courts have reiterated that paramount consideration is the welfare of the children and Court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances." In Anjali Kapoor (Smt.) case (supra) the mother of the child died after giving birth a premature baby who was kept with her grandmother. The natural father claimed custody. Petition was filed under the Guardians and Wards Act, 1890 before the Family Court. After taking evidence, on 18.3.2004 the custody of child was given to the natural father. High court, in appeal, confirmed the same. Appeal was carried out to Hon’ble Supreme Court. The respondent did not appear. The natural father claimed custody. Petition was filed under the Guardians and Wards Act, 1890 before the Family Court. After taking evidence, on 18.3.2004 the custody of child was given to the natural father. High court, in appeal, confirmed the same. Appeal was carried out to Hon’ble Supreme Court. The respondent did not appear. The girl child was found to be studying in one of the reputed schools and the grand-mother was taking proper care and attention and as the natural father respondent had shown his lack of concern in the matter and had gone for the second marriage, the custody of the child was allowed to continue with the grand-mother till the child attain the age of majority. In Tabassum Bano case (supra) of Hon’ble Madhya Pradesh High Court, the petitioner mother claimed custody of the child as during her illness, out of depression, the doctor, in consultation with the elder sister, handed over the custody to respondent and the child was studying in the school and the Court had ascertained the choice of the child by personal interaction and thereafter refused to grant any relief to the petitioner in Habeas Corpus petition. In both the cases, the children were found prosecuting their study and were capable enough to express their intelligent preference regarding custody. But in the case at hand, this court is unable to get any such assistance from the child about her intelligent preference regarding custody between natural mother and the 3rd party. For the above factual differentia, the decisions cited by learned counsel for opposite party no.5 are of no help to him. 10. Relying upon the aforesaid Tabassum Bano case and other decisions in Gohar Begam Vrs. Suggi @ Nazma Begam, 1960 AIR(SC) 93, Rosy Jacob Vrs. Jacob A. Chakramakkal, 1973 (1) SCC 840 , Dr. Veena Kapoor Vrs. Varinder Kumar Kapoor, 1981 (3) SCC 92 , Syed Saleemuddin Vrs. Dr. Rukhsana, 2001 (5) SCC 247 , Nil Ratan Kundu Vrs. Abhijit Kundu, 2008 (9) SCC 413 and Gaurav Nagpal Vrs. Sumedha Nagpal, 2009 (1) SCC 42 Hon'ble Apex Court have clarified the position in the latest decision in the case of Tejaswani Gauda and Others Vrs. Shekhar Jagdish Prasad Tewari and Others, 2019 SCConlineSC 713, (judgment dtd.06.05.2019). The relevant portion reads thus:- "18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Sumedha Nagpal, 2009 (1) SCC 42 Hon'ble Apex Court have clarified the position in the latest decision in the case of Tejaswani Gauda and Others Vrs. Shekhar Jagdish Prasad Tewari and Others, 2019 SCConlineSC 713, (judgment dtd.06.05.2019). The relevant portion reads thus:- "18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant difference between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus." 11. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus." 11. In the backdrop of above legal position, if narratives projected in the case at hand are considered, it is clear that natural mother has alleged that her 1 (one) year old baby child was kidnapped and sold at Rs.20,000/- by opposite party no.4 to opposite party no.5 and kept in illegal custody of opposite party no.5. The opposite party nos.4 and 5 have alleged that natural parents, expressing their inability to bear the burden of 4th girl child, wanted to kill her and abandoned the custody in favour of opposite party no.4, who, in turn, handed over the child to opposite party no.5. Later the husband of the petitioner wanted to extract money for such custody. In this regard, as stated above, the court, on 08.09.2017, allowed as an interim measure, the custody of the child with opposite party no.5 and subsequently directed him to ensure proper care. Opposite party no.5 has categorically stated that they have adopted the child and have performed the required ceremonies. Setting apart the narratives and counter narratives, the core remains undisturbed to the extent that the opposite party no.5 claims parentage right over the child. 12. Conferment or confirmation of parentage is a legal mode to strike a balance between rights of a child and duty of parents without disturbing the identity of the child. There is an appreciable difference between custody and guardianship. Establishment of parentage in certain circumstances may invoke legal jurisdiction but the same cannot be decided by the unilateral action of a party. Even if the biological parents do not have any money or job to support the child or do not want to be involved in child’s life, the parentage cannot be conferred automatically upon others. Termination of parentage right of biological parents need to be addressed by the Law of the land. In our land, parents hold a preferred position for the child below 5 years old. For that, there is a presumption that the parents are the most fit and proper person to raise the child. 13. Parents are natural guardians U/s.6 of the Hindu Minority and Guardianship Act, 1956 (herein after referred as the ‘Act, 1956’ for brevity). In our land, parents hold a preferred position for the child below 5 years old. For that, there is a presumption that the parents are the most fit and proper person to raise the child. 13. Parents are natural guardians U/s.6 of the Hindu Minority and Guardianship Act, 1956 (herein after referred as the ‘Act, 1956’ for brevity). The status of the father and mother as natural guardian of a minor child in respect of their person as well as property is well protected under Law. Under the proviso, natural guardian can be disqualified when he ceases to be a Hindu or completely and finally renounces the world becoming hermit. Noticeably, under explanation to section 6 of the Act, 1956, the father and mother do not include step father and step mother. After the commencement of this Act, no person can claim to be a legal guardian of a minor unless he/she comes within one of the four clauses of person provided U/s.4 of the Act, 1956. Regarding guardianship, the custody of a minor child who has not completed the age of 5 years, shall ordinarily be with the mother. Where the custody of a minor who has not completed the age of 5 years, is given to the mother, law does not contemplate that father is removed from the guardianship. Thus, the right of a mother to have the custody of a minor daughter below 5 years is unequivocally recognized under the Act, 1956. 14. Parent versus parent dispute for the custody of their children involves consideration of the need of the child and his welfare. In case of third-party-dispute where a non-parent claims custody against parents, the consideration involves whether the custody of the child from the parent would be removed if the child with them or if not, whether child from the third party would be brought back for reunification. In both the cases, the parental custody gets primacy but not the parentage. 15. Where the question of abandonment of child comes, it is addressed under the Juvenile Justice (Care and Protection of Children) Act, 2015, (herein after referred as ‘J.J. Act’ for brevity). In both the cases, the parental custody gets primacy but not the parentage. 15. Where the question of abandonment of child comes, it is addressed under the Juvenile Justice (Care and Protection of Children) Act, 2015, (herein after referred as ‘J.J. Act’ for brevity). Under Section 2 (14), "Child in need of care and protection", has been defined to include a child "(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child." Under Section 39 of J.J. Act, the process of rehabilitation and social re-integration of children has been undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care. Thus seen, the parentage of a child is fully protected and parents are not only treated as natural guardian but are also entitled to get the child when it is felt to be restored by Child Welfare Committee or by the J.J. Board. Adoption is only a means to change the parentage whereby the identity of the child is divested with the adoptive parents from biological parents. 16. In the case at hand the opposite party no.5 wants to retain the custody of the baby claiming that she has adopted her and thereby wants to prevent re-unification of the child with the natural mother. Opposite party no.5 does not opt to be appointed as guardian of the child on the ground that biological parents abandoned the baby. Instead, he wants the custody alleging unfitness of the natural parents. The dispute is inherently a change of parentage. Adoption is a mechanism known to our Law to change the lineage of parents and it is governed by Hindu Adoption and Maintenance Act, 1956 (as the parties are Hindu in this case). The dispute of guardianship is governed by the Hindu Guardians and Wards Act, 1956. If it is a dispute involving a child in need of care and protection, the provisions of J.J. Act would govern. All the remedies are efficacious but not availed here. 17. The factors needed to be considered are similar to the factors addressed in Tejaswini Gaud case (supra). If it is a dispute involving a child in need of care and protection, the provisions of J.J. Act would govern. All the remedies are efficacious but not availed here. 17. The factors needed to be considered are similar to the factors addressed in Tejaswini Gaud case (supra). There the child was in tender age, i.e. one and half years. Her choice could not be ascertained and then it is held by Hon’ble Apex Court at paragraph 36 in the following manner:- "36. Taking away the child from the custody of the appellants and handing over the custody of the child to the first respondent might cause some problem initially; but, in our view, that will be neutralized with the passage of time. However, till the child is settled down in the atmosphere of the first respondent-father's house, the appellants No.2 and 3 shall have access to the child initially for a period of three months for the entire day, i.e. 8 A.M. to 6 P.M. at the residence of the first respondent. The first respondent shall ensure the comfort of appellants No.2 and 3 during such time of their stay in his house. After three months, the appellants No.2 and 3 shall visit the child at the first respondent's house from 10 A.M. to 4 P.M. on Saturdays and Sundays. After the child completes four years, the appellants No.2 and 3 are permitted to take the child on every Saturday and Sunday from the residence of the father from 11 A.M. to 5 P.M. and shall hand over the custody of the child back to the first respondent father before 5 P.M. For any further modification of the visitation rights, either parties are at liberty to approach the High Court." 18. Paving the path in the same way and bestowing our anxious consideration to the admitted facts and the rival claims, we are of the considered opinion that the claim of opposite party no.5 to retain the custody of the baby child on the ground of adoption is not acceptable being contrary to Law. He has alternative remedy under Hindu Guardianship Act and J. J. Act. 19. He has alternative remedy under Hindu Guardianship Act and J. J. Act. 19. Considering the age and the consistent efforts of natural mother to regain custody of her girl child, we feel it appropriate and justified that the natural mother petitioner shall be the custodian of the girl child and it would be in the best interest of the child. As the taking away of the child from the custody of the opposite party no.5 and handing over to petitioner natural mother might cause some problem, initially the opposite party no.5 and his wife are given access to the child for a period of three months during day time at the residence of the petitioner. The Child Welfare Committee of Cuttack District under J. J. Act shall keep watch over the child for six months and are free to act as per law. The handing over of the child within a week shall be done in presence of the Child Welfare Committee. For compliance of the order, Registry is directed to supply free copy of this order to the petitioner, opposite party no.5 and the Chairman of Child Welfare Committee, Cuttack through the Member Secretary, Legal Services Authority, Cuttack. The WPCRL is allowed accordingly.