Cannot Subject Writ Of Habeas Corpus In Little one Custody Issues Between Husband & Spouse: Orissa Excessive Court docket

The Orissa High Court has declined to issue the writ of habeas corpus in favor of a woman who claimed custody of her minor child from her husband.

A Division Bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman widely noted the observations made by the Apex Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., while discouraging issuance of habeas corpus for granting custody of child from one parent to another.

Therein the top court had held that habeas corpus proceedings were not meant for justifying or examining the legality of the custody. It is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise, a write will not be issued. 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 by a person who is not entitled to his legal custody.

It further noted,

“In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction.There are significant differences between the inquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature.What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed inquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petit ion for habeas corpus.”

Having regard to the aforesaid legal position, the High Court concluded,

“In view of the ratio laid down in the aforesaid case and in the factual scenario, when the alternative efficacious remedy is available, we are not inclined to entertain the write petition which is in the nature of habeas corpus. However, the petitioner is at liberty to seek appropriate remedy before appropriate forum in accordance with law.”

Accordingly, the petition was disposed of.

Case Title: Koushalya Das v. State of Odisha & Ors.

Case No.: WPCRL No. 66 of 2022

Order Date: 7th June 2022

Coram: Sangam Kumar Sahoo & Murahari Sri Raman, JJ.

Counsel for the Petitioner: Mr PK Das, Advocate

Counsel for the Respondents: Mr AK Sharma, Additional Government Advocate

Citation: 2022 Live Law (Ori) 103

Click Here To Read/Download Order