The Orissa High Court has refused to issue a warrant in favor of a woman who is claiming custody of her minor child from her husband.
A division bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman took wide notice of the Apex Court’s observations in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors. while advising against issuing habeas corpus to transfer custody of a child from one parent to another.
In it, the Higher Regional Court decided that habeas corpus proceedings do not serve to justify or examine the legality of custody. This is a prerogative order constituting an extraordinary remedy and the order will be issued when, in the circumstances of the case, an ordinary legal remedy provided for by law is either unavailable or ineffective; otherwise no order will be issued. In custody matters, the High Court’s power to grant the order is limited only where the detention of a minor is by a person who is not entitled to his or her statutory custody.
It further stated
“In custody matters, the ordinary remedy is only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be. In cases arising out of proceedings under the Guardians and Wards Act, the court will have jurisdiction as determined by whether the minor is habitually resident in the area where the court exercises such jurisdiction. There are significant differences between an inquiry under the Guardians and Wards Act and the exercise of powers by a enforcement court, which are summary in nature. What is important is the welfare of the child. In the court judgment, rights are established only on the basis of affidavits. If the court considers that a detailed investigation is necessary, the court may refuse the exercise of extraordinary jurisdiction and order the parties to report to the civil court only in exceptional cases, the rights of the parties to custody of the minor are exercised in the exercise of extraordinary Jurisdiction established on a petition ion for habeas corpus.”
Having regard to the above legal situation, the High Court concluded that
“Given the ratio established in the foregoing case and the factual scenario, if the alternative effective remedy is available, we are disinclined to consider the written request, which is in the nature of habeas corpus. However, the petitioner is at liberty to seek appropriate remedies in any appropriate court in accordance with the law.”
Accordingly, the petition was settled.
Case title: Koushalya Das vs. State of Odisha & Ors.
Case #: WPCRL #66 of 2022
Order date: June 7, 2022
Coram: Sangam Kumar Sahoo & Murahari Sri Raman, JJ.
Petitioner’s lawyer: Mr. PK Das, lawyer
Respondents’ Counsel: Mr. AK Sharma, Additional Government Counsel
Quote: 2022 LiveLaw (Ori) 103
Click here to read/download the order