Supreme Court stays Orissa High Court order on granting custody of minor to father

Putting a stay on the restoration of minor custody to the father, the Supreme Court remarked that Orissa High Court failed to ascertain the welfare of the child. 

The Division Bench of Justice Manoj Misra and Justice B.V. Nagarathna noted that welfare of the child is paramount consideration in legislations including Muslim law for adjudicating cases related to child custody.

The appellant, sister and niece of the father in the present plea, pointed out that biological parents of the girl had earlier abandoned her on the ground of financial incapability followed by a declaration of not wanting a girl child. 

The petition further stated that legal recourse to gain custody was only initiated when a property dispute arose between the parties. 

The minor girl wants to live with her father’s sister and niece, the Advocate for the petitioner argued. 

On the basis of evidence and the submissions made before the Bench, the court put an interim stay on the order of the High Court of Orissa.  

It further noted that no criminal proceedings alleging kidnapping or other offences were initiated by the parents. 

The court had listed the matter for next hearing and sought a reply from the Oriss government. 

A Habeas Corpus petition under Article 226 was filed before the Orissa High Court against the appellants by Shazia Aman Khan for alleged illegal detention of his daughter.

The High Court invoked the Parens Patriae doctrine, and directed the custody of the girl be given to her father through order dated April 30, 2023 on the ground that proceedings before the Family Court under the Guardian and Wards Act initiated by the sister and niece of Aman Khan are still pending. 

Since the father resided in Rourkela and the appellants in Bihar, objections on the ground of territorial jurisdiction were raised. 

However, the court refuted the objections on the reason that technicalities cannot be given prime importance in such matters. 

It further stated that Article 226(2) empowered the court to decide and issue writs on the cause of action that was either in whole or in part within its territorial limits. 

The Parens Patriae, “parent of the nations” doctrine permits the court to intervene and protect the child from negligent and abusive parents or guardians. 

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