Babu Charan Patra v. Nityananda Patra and others), inter alia, paragraph
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No. 5 of 2024 Nandini Behera …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocates appeared in the case: For petitioner - Mrs. B. Panda, Advocate For State - Mrs. Suman Pattanayak, AGA For Opp. Party no.5 - Mr. Biplaba P.B. Bahali, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO J U D G M E N T ---------------------------------------------------------------------------------------------- Dates of Hearing: 20thFebruary, 2024, 23rd February, 2024, 1st March, 2024 and 13th March, 2024 Date of Judgment: 13th March, 2024 ---------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The mother is petitioner. She seeks production of the child from custody of his father. As such she has moved this Court for issuance of a writ of habeas corpus. Page 1 of 9 // 2 // 2. The boy is around seven years old. On earlier occasion, it was submitted on behalf of State that the boy is with the father. For purpose of filing report in the writ petition, when the police had gone to the father, he had said the boy was with him and he would produce him in Court. We ascertained the boy was not produced before the police. In the circumstances, by order dated 20th February, 2024 we directed opposite party no.5 (the father) to be present in Court with his son on adjourned date, when they and the mother were present in Court. The mother, the boy and his father are present in Court today as well. 3.
Legal Reasoning
Mr. Bahali, learned advocate appearing on behalf of the father had earlier relied on judgment dated 5th December, 2023 of a Division Bench of this Court, to which one of us was party (Arindam Sinha, J.), in MATA no.104 of 2018 (Babu Charan Patra v. Nityananda Patra and others), inter alia, paragraph 9 (Manupatra print). Reliance was on view taken that a father is natural guardian and entitled to custody. As such it cannot be said the child is in illegal custody for issuance of habeas corpus. 4. Mr. Bahali had also relied on judgment dated 28th July, 2021 of the Supreme Court in Writ Petition (Criminal) no.318 of 2020 (Jose WPCRL No.5 of 2024 Page 2 of 9 // 3 // Antonio Zalba Diez Del Corral vs. The State of West Bengal), inter alia, paragraph-12 (Manupatra print). He further relied on view taken by a Division Bench of this Court following another judgment of the Supreme Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, reported in (2019) 7 SCC 42. View taken by the Division Bench was on judgment dated 7th June, 2022 in WPCRL no.66 of 2022, (Koushalya Das v. State of Odisha and others). 5. Relying on above judgments submission of Mr. Bahali was that in Jose Antonio Zalba Diez Del Corral (supra) not only was earlier judgment of the Supreme Court in Yashita Sahu v. State of Rajasthan (judgment dated 20th January, 2020 of the Supreme Court in Criminal Appeal no.127 of 2020) distinguished but also Tejaswini Gaud (supra) followed. Today he relies on yet another judgment dated 4th March, 2024 of the Supreme Court in the Criminal Appeal arising out of Special Leave Petition (Crl.) no.7290 of 2023 (Shazia Aman Khan and another v. The State of Orissa and others). He submits, by the judgment the writ petition seeking issuance of habeas corpus was dismissed. Appellants, who had custody of the child in that case, successfully resisted the writ petition. In the circumstances, present writ petition is not maintainable and should also be dismissed. WPCRL No.5 of 2024 Page 3 of 9 // 4 // 6. Mrs. Panda relies on Yashita Sahu (supra) to submit, the Supreme Court issued directions to enforce visitation right of a parent in respect of the child, in the case arising out of the writ petition for habeas corpus. She also relies on view taken by a Division Bench of this Court, again in which one of us was party, (Arindam Sinha, J.). It is judgment dated 23rd February, 2024 in WPCRL no.6 of 2024 (Kshmanidhi Meher v. State of Odisha and others). She submits, her client’s prayer for production of the child and thereby to get custody may not be allowed but at least there be direction for her to visit the son. 7. We find from Yashita Sahu (supra) the criminal appeal, on leave granted by the Supreme Court, arose from a writ petition carrying prayer for issuance of habeas corpus. We reproduce paragraph-20 from the judgment. “20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the WPCRL No.5 of 2024 Page 4 of 9 // 5 // child is not totally deprived of the love, affection and company of one of her/his parents.” The Division Bench in Kshmanidhi Meher (supra) directed visitation following Yashita Sahu (supra). We reproduce below paragraph-6 from Kshmanidhi Meher (supra). “6. Ms. Mahapatra submits, some direction be made to comply with visitation right of her client. Following judgment dated 20th January, 2020 of the Supreme Court in Criminal Appeal no.127 of 2020 (Yashita Sahu v. State of Rajasthan and others) arising from writ petition
Decision
for habeas corpus, we direct petitioner may visit his son at his school. The administration of Anchal Nodal High School, Jharmunda is requested to arrange any room in the school being made available for petitioner to meet his son every Friday, except holidays, in presence of a teacher. The meetings will be between 1.30 to 2.00 p.m.” 8. In Tejaswini Gaud (supra) the Supreme Court expressed its view in paragraph-14, reproduced below. “14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when WPCRL No.5 of 2024 Page 5 of 9 // 6 // wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.” (emphasis supplied) 9. Shazia Aman Khan (supra) is a judgment of the Supreme Court also arising from a writ petition carrying prayer for issuance of habeas corpus. Facts in the case, as we have ascertained were, inter alia, father of the child had filed the writ petition for one of his twin daughters to be produced, to enable him to get custody. The child had been left with the paternal aunt because the father could not look after both. This happened when the child was 2-3 months old. Custody ultimately came to be and was with the cousin sister of the girl (daughter of the paternal aunt) and her husband. The father having approached this Court, there was direction for production of the child and custody was directed to be made over to the father, the natural guardian by the personal law. The aunt and her daughter (the cousin WPCRL No.5 of 2024 Page 6 of 9 // 7 // sister) sought special leave to appeal and on having been granted the leave, the criminal appeal was dealt with by the judgment, setting aside the judgment of this Court, to dismiss the writ petition of the father. 10. The Supreme Court in Shazia Aman Khan (supra) distinguished its earlier judgment in Tejaswini Gaud (supra) on facts. We reproduce paragraph-18 from the judgment, speaking of the distinction. “18. The judgment in Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari’s case (supra), relied upon by learned counsel for respondent No.2 does not come to her rescue for the reason that age of the child in that case was merely five years. It is a case which lays down guidelines as to how custody of the child is to be handed over.” The girl in that case will presently be around 13 years old. In this case, the boy is seven years old. Clearly Shazia Aman Khan (supra) does not come to aid of opposite party no.5 in urging that the writ petition is not maintainable and therefore no order or direction for enforcing visitation right is to be made. Moreover, the Supreme Court by the judgment denied custody granted by the High Court to the father. In this case it can also be said the judgment is against the father. WPCRL No.5 of 2024 Page 7 of 9 // 8 // 11. Mrs. Pattanayak, learned advocate, Additional Government Advocate appears on behalf of State. We find the police did what they could in the situation. 12. On having had been required by us on earlier occasion Mr. Bahali produces original identity card of the boy, issued by Machhuati Primary School, at- Machhuati, P.O.-Salipur, District-Cuttack-754202. On query from Court Mrs. Panda submits, her client would like to visit her son on weekends. Mr. Bahali submits, the school is open half day on Saturday between 6.00 a.m. and 10.00 a.m. 13. The Headmaster of Machhuati Primary School is requested to arrange for a room or a suitable place in the school premises for petitioner (the mother) to meet her son between 10.00 a.m. and 11.00 a.m. in the morning on school working Saturdays. Petitioner and concerned police station will communicate website copy of this judgment to the headmaster, for visit to take place commencing this Saturday (16th March, 2024). We request cooperation and assistance by the school in carrying out our direction. Having said so, parties are left to find their remedy regarding custody, in the Civil Court. This observation because we have ascertained from them, the parents are WPCRL No.5 of 2024 Page 8 of 9 // 9 // divorced and there is no pending custody litigation as on date. The son’s identity card is returned to Mr. Bahali. 14. The WPCRL is disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 15-Mar-2024 11:21:17 WPCRL No.5 of 2024 Page 9 of 9