The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Dec-2023 18:31:35 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 13280 OF 2023 Santosh Kumar Sethy …. Mr. Gyanendra Chandra Swain, Advocate Petitioner -versus- State of Odisha and others …. Opp. Parties
Legal Reasoning
Mr. Debendra Kumar Mohanty, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 04.12.2023 6. 1. This matter is taken up through hybrid mode. 2. This writ petition has been filed for a direction to Opposite Parties to take a decision to hand over the minor child to the Petitioner. 3. It is submitted by learned counsel for the Petitioner that on 4th June, 2022, when the Petitioner along with his wife were returning from their village to Cuttack, they could detect an abandoned new born baby in between Naraj and Dhabaleswar under a Banyan tree. Nobody was found nearby the child. Accordingly, the Petitioner and his wife waited for some time and took the custody of the minor child. They also enquired the matter with the nearby inhabitants, but nobody came forward to claim the child. Thus, they kept the child with them and took care of the child. They also took the child to hospital for regular checkup. But suddenly on 24th February, 2023 at 8.00 PM staff of Cuttack Child Welfare Committee along with staff of Mangalabag Police reached their house and took over custody of Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Dec-2023 18:31:35 // 2 // the child and kept the child at Basundhara, which is an Orphanage. In spite of repeated requests, neither the Police nor the staff of Child Welfare Committee paid any heed. 3.1 It is his submission that when the Petitioner was taking best care of the child, it should not have been taken away from him without following due procedure of law. 3.2 It is submitted by learned counsel that the Petitioner is ready and willing to take the custody and provide best care to the child. Hence, finding no other alternative, this writ petition has been filed. 4. Mr. Mohanty, learned ASC drew attention of this Court to para-9, 10 and 11 of the Counter affidavit filed by Opposite Party No.4-District Child Protection Officer, District Child Protection Unit, Cuttack, which is reproduced hereunder:- “9. That it is humbly submitted that in the lens of Juvenile Justice (Care and Protection) of Children Act, thereto as well as of Adoption 2015 and Rules Regulations, 2022 to view that the contentions raised and grounds urged in the writ petition does not entitle the petitioner to claim or establish parenthood, guardianship or custodian over the child in the eyes of law. 10. That it is humbly submitted that as per the provision U/s 31 of the II (CPC) Act, 2015 the child was produced before the CWC and by virtue of the order of CWC the child has been placed to stay in the Specialized Adoption Agency (SAA), Basundhara, Cuttack from 25.02.2023 in conformity with the provisions U/s.37 (1) (c) read with Section 36 (3) of JJ (CPC), Act, 2015 and the rule 33(3) of Odisha JJ (CPC) Rules, 2018. It is pertinent to mention here that SAA is the recognised institution of the Govt. of Odisha for housing orphans, abandoned and surrender children for the purpose of rehabilitation through adoption as a non-institutional care the SAA at Basundhara where this child is placed is a well-equipped institution and managed by trained personnel to provide appropriate health, nutrition and age appropriate development services to the children as per the quality rehabilitation measure. That Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Dec-2023 18:31:35 // 3 // and standard as stipulated under Odisha JJ (CPC) Rules, 2018. 11. That it is humbly submitted that the child has been taken care by one dedicated House Mother who is responsible to caring child with love and affection and ensure his welfare. At the time of entry of the child to SAA, Basundhara, his height was 63 cm, weight 6 kg and head circumference was 44 cm. The growth of the 11 child is found satisfactory during his period of stay at C SAA. The present health status of the child is given hereunder as follows:- Physical Growth: Height-72 c.m Weight-8.5 Kg Head circumference- 47 c.m Diet & Nutrition Taken: Puffed Rice, Khichdi, Boiled Amul, egg. Boiled vegetables, and snacks Medical Intervention: Immunization: Activities: Health check-up has been made under pediatric doctor and nurse. Growth measurement is done in every month. Health conditions is normal, good and developing age appropriately. Vaccination such as BCG, DPT, Measles, Hepatitis- B have been administered to the child. to have age- Child appropriate development, normal growth, able to sit, standing with help of wall or individual support, able to throw play items. found is It is relevant to mention here that the inquiry procedures to abandoned child are explicitly delineated under the sub-rules 24, 25 and 28 of Odisha Juvenile Justice (Care and Protection of Children) Rule 2018. Hence, in compliance to the above-stated provisions of law, advertisement has been made through widely circulated Newspaper "The Samaj" on dtd. 05.07.2023 by virtue of the order of the CWC with a view to trace the biological parents or family member of the child.” He therefore submits that the Petitioner has no right to claim custody of the child by filing the present writ petition. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 05-Dec-2023 18:31:35 // 4 // 5. Considering the submissions of learned counsel for the parties and the provisions of law discussed in para-10 of the Counter affidavit, the Petitioner is not entitled to the custody of the child in the manner he has prayed for in the writ petition. If the Petitioner wants to take care of the child, he has to adhere to the procedure of law. 6. In that view of the matter, the writ petition is disposed of with an observation that the Petitioner, if so advised, may take steps in accordance with law. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satpathy Page 4 of 4