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Judgment
I.A. NO.20012 OF 2023
Ms. Mahapatra, learned advocate appears on behalf of petitioner. She submits, her client is the father. Opposite party no.6 is the wife. She left and made false complaint for the police to act under section 498-A in Indian Penal Code, 1860. She then married opposite party no.7. In the circumstances, her client being the natural guardian under section 6(a) in Hindu Minority and Guardianship Act, 1956 is entitled to have the child produced from custody of opposite party nos.6 and 7. Date of birth of the boy is 12th October, 2011 and he is more than 5 years old.
She relies on judgment of the Supreme Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, reported in (2019) 7 SCC 42, paragraph 14. The paragraph is 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 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.”
She seeks interference for her client to obtain relief of restoration of custody.
Mr. Das, learned advocate, Additional Government Advocate appears on behalf State and submits, the mother is represented.
Mr. Panda, learned advocate appears on behalf of opposite party nos.6 and 7. On query from Court he submits, there is no matrimonial proceeding pending between petitioner and opposite party no.6. Said opposite party is not in possession of any order giving her custody of the minor son. We refrain from further probe.
Mr. Panda relies on a sentence/passage Tejaswini Gaud (supra), reproduced below.
“19. ... ... ... In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. ... ... ...”
Opposite party no.6 being the mother therefore cannot be said to have illegal custody of the minor son.
We have made our queries in context of the father being natural guardian of the minor boy, who is more than 5 years old. Opposite party no.6 does not have an order for custody. In a situation where there is allegation she has married opposite party no.7, opposite party no.7 can have no claim whatsoever to custody. It is enough for us that said opposite parties have together empowered learned advocate.
We give liberty to opposite party no.6 to produce the boy in Court at 12:30 P.M. on 23rd February, 2024. Petitioner may also be present. We make it clear, if the boy is not voluntarily produced we shall make appropriate directions upon State.
List on 23rd February, 2024 marked at 12:30 P.M.
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