The Supreme Court has recently issued a partial stay on an Orissa High Court order that invoked parents patriae jurisdiction to restore custody of a minor Muslim girl to her father in a habeas corpus case.
The parens patriae jurisdiction grants courts the power to act as the guardian of a child, individual, or animal in need of protection.
A vacation bench of Justices BV Nagarathna and Manoj Misra from the Supreme Court also directed the Orissa government to respond to the matter.
This case raises the question of the territorial jurisdiction limits of High Courts in habeas corpus cases.
Previously, the father approached the Orissa High Court, alleging the illegal detention of the child by the present appellants – his niece and elder sister.
On April 30 of this year, the High Court held that technical objections regarding territorial jurisdiction cannot be given much importance in such cases. The court observed that Article 226(2) of the Constitution enables it to issue writs beyond its territorial limits, provided that a partial cause of action arises within its jurisdiction.
The High Court also noted that proceedings under the Guardians and Wards Act initiated by the father’s niece and sister for the custody of the child were still ongoing. Consequently, the High Court directed the authorities to ensure that the child is returned to the father by the end of June.
The father of the girl resides at Rourkela, while the present appellants reside in Bihar.
The appellants argued before the Supreme Court that the biological parents had previously abandoned the minor girl, cited financial constraints and expressed a lack of desire for another female child.
They asserted that the custody dispute arose due to a property disagreement between the parties. Moreover, a similar plea made by the mother was withdrawn from the Patna High Court.
The plea emphasizes that the girl wishes to continue residing with the appellants and contends that the High Court conflated the welfare of the child with custody and adoption rights. “Even under Muslim Personal Law, the central idea for appointment of guardian or for deciding the issue of custody is to consider the welfare of the minor.”
The appellants also pointed out that no evidence of kidnapping was found by the authorities in a previous criminal case filed by the parents.
The Supreme Court stayed the High Court’s order to return custody of the minor girl to the father, as it deemed it necessary to examine other legal questions in a broader context.
