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The Orissa high court’s division bench of S. Talapatra* and Savitri Ratho, JJ has adjudicated while exercising the parens patriae jurisdiction for issuance of the writ of habeas corpus, the objections relating to territorial jurisdiction cannot have serious impact in Nesar Ahmed Khan v. State of Orissa (2001 CriLJ 3279)

Facts of the Case

In the current case, the petitioner’s sister, as well as her daughter and son-in-law (Opposite Parties), have been imprisoning and holding against her will the petitioner’s underage daughter, who is around 12 years old. Despite many requests, the father of the youngster was unable to see his daughter. He had reported the incident to the relevant police station as well as to the Child Welfare Committee (CWC), but the authorities made no follow-up moves. The petitioner had gone to the police station on September 12, 2015, to request the release of his little daughter from unlawful detention. The Police didn’t do anything, though. The Police were instructed to open a case and begin an inquiry after the petitioner later filed a complaint with the Rourkela Sub-Divisional Judicial Magistrate’s Court. On March 25, 2016, the petitioner also wrote a letter of appeal to the Sundargarh Child Welfare Committee’s chairperson. The Investigating Officer further said that the child was imprisoned against his will in Phulwari Sharif in Patna. On August 22, 2016, a search warrant was granted, however the door was locked when the investigating officer went to the location. 

Judgment

According to the Court, the parties have agreed that there is no practice in Mohammedan Law that is comparable to adoption as it is recognized by Roman and Hindu law. The Juvenile Justice (Care and Protection of Children) Act, 2000 (the “JJ ACT”), upon which the Opposing Parties had relied, was declared by the Court to be a secular provision. According to the JJ Act, the major goal of adoption, the Court further stated, is the rehabilitation of orphaned, abandoned, or relinquished children. The court further stated that a particular time limit had been set down in the JJ Act for the parents of the children who had been turned over to the authorities to rethink handing back custody. The Court reviewed Article 226(2) of the Indian Constitution and stated that any High Court with jurisdiction over the territories where the cause of action, wholly or in part, arises may exercise the power conferred by clause (1) to issue directions, orders, or writs to any Government, authority, or person, even if the seat of such Government or authority or the residence of such person is not within those territories. farther, the Court stated that if the cause of action is completely or partially based on the use of such power, this extends the Court’s authority even farther than its geographical jurisdiction.  The Court noted that the care of the minor child was subject to being characterized as illegal detention in the absence of adoption. The Court ruled that even a familial link, as had been contended, was insufficient to deny the parents custody of their child, and that the detention of the kid was being attempted to be justified under the guise of an adoption that neither existed in reality nor was permitted by law. The opposing parties are one of the crucial considerations that the court needs to take into account, and the court was aware that emotional bonds had formed as a result of the little daughter’s prolonged stay. The court also mentioned how well-cared for the kid was by the opposing parties. 

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JUDGEMENT REVIEWED BY HARSHEEN KAUR LUTHRA, RGNUL, PUNJAB

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