The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No.42 of 2023 Swati Smaranika Mohanty … Petitioner Mr. B.K. Behera, Advocate. -versus- State of Odisha & others …. Opp. Parties Mr. Arupananda Das, Additional Government Advocate.
Legal Reasoning
Mr. B.K. Ray, Advocate for opposite party nos.7 to 10. CORAM: JUSTICE S.K. SAHOO JUSTICE SIBO SANKAR MISHRA Order No.
Decision
ORDER 08.09.2023 06. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard Mr. B.K. Behera, learned counsel for the petitioner, Mr. Arupananda Das, learned counsel for the State and Mr. B.K. Ray, learned counsel for opposite party nos.7 to 10. The petitioner has filed this writ petition in the nature of habeas corpus for a direction to opposite party nos.2 to 9 to search her minor child and hand over to her within a stipulated period. When the matter was first taken up on 05.04.2023, notice was issued to opposite party nos.7 to 10 and the learned counsel for the State was also asked to obtain information about well-being of the child, who was allegedly in the custody // 2 // of opposite party nos.7 to 10. The matter was taken up on 17.05.2023 and on that day, the I.I.C., Itamati Police Station has submitted a report stating that the son of the petitioner namely, Swadil Sandhya Darsan (Rishi), who is now aged about nine years, is living with opposite party nos.7,8 & 9 and accordingly, the direction was issued to opposite party no.5 to make appearance of the son of the petitioner along with opposite party nos.7,8 & 9. The matter was next taken up on 27.06.2023 and the child was produced before this Court by opposite party nos.7,8 & 9 and the petitioner requested to meet her child and spent some time and on that day, this Court directed opposite party nos.7,8 & 9 that whenever the petitioner would like to meet her son, they should allow her to meet her at their house. An additional counter affidavit has been filed by opposite party no.7 wherein it is indicated that in pursuance of order dated 27.06.2023, the petitioner has met her son at the school premises three times where he is pursuing his study instead of paternal grandfather’s house and at no point of time, she had visited to the house of the opposite party no.7. It is stated that when the complaint was made by the petitioner before the office of the Child Welfare’s Committee, Nayagarh and prayer was made before the Chairperson of the said Committee to rescue her minor child from the custody of opposite party nos.7 & 8, pendency of the writ petition before this Court was suppressed. However, the S.I. of Police, Itamati Police Station made a telephonic call on 05.08.2023 asking opposite party no.7 to cause production of the minor child of the petitioner and on the very same day at 5.0 p.m., opposite party no.7 appeared before the S.I. of Police & I.I.C., Itamati Police Station and informed them about pendency of the present writ petition and also shown them the certified copy of order dated 27.06.2023 passed by this Court. Opposite party no.7 was Page 2 of 5 // 3 // asked to come on 18.08.2023 as it was told by opposite party no.7 to the police officials that the minor child was suffering from Asthma and on 08.08.2023, the S.I. of Police, Itamati Police Station asked opposite party no.7 to produce the minor child and accordingly, opposite party nos.7 & 8 along with the minor child appeared before the Itamati Police Station at 5.00 p.m. and at about 8.30 p.m., the S.I. of Police of Itamati Police Station took them to the child help line office. Even though the certified copy of order dated 27.06.2023 of this Court was produced, but the chilled was referred to Utkal Bala Ashram, Nayagarh and opposite party no.7 was directed to remain present on 09.08.2023 at 12.00 p.m. before the Chairman, Child Welfare Committee, Nayagarh and specifically the matter was deferred to 10.08.2023 and again on 10.08.2023, opposite party nos.7 to 10 appeared before the Child Welfare Committee, Nayagarh and the Committee had taken the opinion of the child by visiting to Utkal Bala Ashram where the minor child expressed that he wanted to reside with the paternal grandparents and is not interested to live with the petitioner. Accordingly, the Committee finally formed opinion the welfare of the child is paramount consideration and institutionalization of the child is last resort. Opposite party no.7 the grandfather showed the medical documents regarding the health condition of the child and his treatment. The Welfare Committee is finally decided to restore the child to the grand- parents and also directs the opposite party no.7 to report about the study, health and welfare of the child once in a month for one year and also directed Utkal Bala Ashram to hand over the child to opposite party no.7 after execution of proper zimanama. Learned counsel for the petitioner has filed an additional affidavit to the additional counter affidavit of opposite party Page 3 of 5 // 4 // no.7 which is taken on record. The order of the Child Welfare Committee, Nayagarh dated 10.08.2023 passed in CWC Case No.3092/CWC/2023 has been annexed to the additional counter affidavit filed by opposite party no.7. Learned counsel for the petitioner submitted that the health condition of the child is not good and he is required to be admitted at S.C.B. Medical College & Hospital, Cuttack. Learned counsel for opposite party no.7 on the other hand submitted that the child is attending the school and there is no health issue of the child. After perusing Annexure-G which is the order dated 10.08.2023 annexed to the additional counter affidavit filed by opposite party no.7 when after taking the opinion of the child, he is allowed to stay with opposite party nos.7 to 10 and direction has already been issued by this Court as per order dated 27.06.2023 to allowed the petitioner to meet her son and when the order has been passed to opposite party no.7 to report about the study, health and welfare of the child once in a month for one year, in such scenario we are of the humble view that it cannot be said that the minor son of the petitioner is under illegal or wrongly confinement by opposite party nos. 7 to 9. After custody of the child the petitoiner is at liberty to approach proper forum in accordance with law and the same shall be adjudicated if so advised. We are not expressed any opinion on the same. Learned counsel for the State shall intimate the Child Welfare Committee to see that opposite party no.7 gives the report about the study, health and welfare of the child as per order dated 10.08.2023 and the Chairperson himself or any entrusted members to visit and see about the health condition of the child and see whether the child is staying happily with Page 4 of 5 // 5 // opposite party nos.7 & 8. With the aforesaid observation, the writ petition is accordingly disposed of. Issue urgent certified copy of this order on proper application. Judge (S.K. Sahoo) Judge (S.S. Mishra) amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Sep-2023 16:42:45 Page 5 of 5