Sumatimani Sau VS State of Odisha

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ORISSA HIGH COURT
Sibo Sankar Mishra, J.
Sumatimani Sau and Anr. – Petitioners
versus
State of Odisha and Ors. – Opp. Parties
Crl. MC No.4792 of 2024
Decided on 29.1.2025

Advocates:
Counsel for the Parties:
For the Petitioners:Mr. Prasanna Kumar Parhi, Advocate
For the Opp. Party No.1: Ms. Sarita Maharana Additional Standing Counsel

Headnote:
Indian Penal Code, 1860 – Sections 451/363 – Custody of Child – Girl Child – Abandonment of Girl Child – Directions issued – The alleged action of the petitioners abandoning their biological daughter in favour of a male child reflects this regressive mindset – However, the Courts must exercise caution in allowing such societal prejudices to over shadow the fundamental right and welfare of the child – While the circumstances surrounding the abandonment of the female child are grave, it is equally important to recognize the maternal instinct and the natural bond between a mother and her child – Also, the welfare of the child is paramount importance and takes precedence over all other considerations including allegations of wrong doings against the parents. The “tender years doctrine” mandates the custody of a young child especially an infant should be ordinarily be awarded to the biological mother as she is better positioned to provide the care, nurturing and emotional support necessary for the child’s holistic development.
Held: To protect the right of the girl child, who is an infant and the breast-feeding baby, takes supremacy over all other incidental issues pertaining to the case. It is apt to rely on the judgment of the Karnataka High Court in this context.
The right of the child precedes over the guilt of the parents. The inalienable rights of the infant child supersedes all the attending adverse circumstances alleged against the biological parents of the baby. Notwithstanding the pendency of the criminal proceeding, the petitioners are entitled to claim of custody of the infant being biological parents under the “tender years doctrine”. Custody of the infant child of ten tends favour the mother. The endless affection of the mother for her child develops right from the womb, her ability to care and love for the child should not be subjected to probe. An incorrect decision out of societal stigma shall not create of shadow of doubt about mother’s affection for her child. The circumstances under which the infant female child got engulfed in the controversy led to the shifting her custody from her mother assumes relevancy to be adverted to, at this stage. Deep rooted social malady to have a tendency of preference of a male child over a female child is the real cause of dispute. The facts of this case bring to light the deeply entrance societal biases that prioritise male child over female child often driven by patriarchal and cultural practices that favours male lineage for inheritance, ritual and property right.
Court cannot overlook the welfare and best interests of the infant girl child which must supersede all societal prejudices and parental guilt.
Court is also alive to the fact that the safety and well-being of the child needs to be periodically monitored, hence the following directives are necessitated.
Regular inspections shall be conducted by members of the Child Welfare Committee to ensure the safety and protection of the child.
Continuous evaluations of the child’s physical health and general well-being by the Child Welfare Committee shall be done.
Petitioners shall cooperate with the CWC and comply the conditions imposed by the Child Welfare Committee.
CWC may facilitate therapy and provide support to petitioners parents as it falls within its mandate to ensure the welfare of the child and address the underlying issues that may impact child’s upbringing.
Assessment of parental behaviour towards the child, taking into consideration their previous conduct of abandonment and neglect may be kept in mind to impose necessary condition.
It is open for the CWC to move before the trial Court to recall order of the custody of the child in the event the welfare and protection of the child is found to be compromised at any point of time. [Paras 5 to 17].
Result: Disposed off.

JUDGMENT

Sibo Sankar Mishra, J.—Heard Mr. Prasanna Kumar Parhi, learned counsel for the petitioners and Ms. Sarita Maharana, learned Additional Standing Counsel for the State.

2. In this petition, the petitioners are seeking quashing of the order dated 01.08.2024 passed by the learned J.M.F.C., Balasore in connection with Balasore Town P.S. Case No.125 of 2024 corresponding to C.T. Case No.318 of 2024, whereby the application moved by the petitioners for delivery of the custody of their daughter to them has been turned down.

3. The petitioners are accused in connection with Balasore Town P.S. Case No.125 of 2024 corresponding to C.T. Case No.318 of 2024 registered for the alleged commission of the offences punishable under Sections 451/363 of the IPC pending in the Court of the learned J.M.F.C., Balasore.

4. The allegation against the petitioners is that, the complainant reported at the local P.S. inter alia, alleging that on 02.04.2024, he had admitted his new born baby at the Special Care Unit, Balasore Headquarter Hospital and during the treatment on 04.04.2024 in the afternoon, someone had taken his son from the hospital bed. Hence, the F.I.R.

5. The investigation of the case revealed that, the petitioners have kidnapped the baby boy from the hospital by abandoning their own daughter. The abandoned biological daughter of the petitioners has been given to the custody of the respondent agency. The petitioners are being prosecuted for the offence as alleged in the F.I.R. mentioned above.

6. Both the petitioners have been admitted to bail and they are facing the trial for the offences they are chargesheeted for. At this stage, they moved an application before the Court below seeking delivery of the custody of their daughter to them, which has been turned down by the learned trial Court by the impugned order, inter alia, observing as under:

“I have perused the case record along with other connected relevant documents viz. The FIR, The Charge-sheet, 161 Statement of the witnesses, the case diary, seizure list, order of the S.D.J.M., Balasore on dtd. 15.04.2024 and other documents related to this case. On perusal it is found that this case was instituted on the basis of written report given by one Susanta Barik. As per his information on dtd. 02.04.2024 when he had admitted his infant child (of age 8 days) in the New Born Special Care Unit, O&G Department at DHH, Balasore, on dtd. 04.04.2024 at about 12:00 noon, his child was stolen from that Unit. Also as per the allegation of the prosecution, the accused namely, Sumatimani Sau with an urge to have a male child, left her new born baby daughter on the bed of the informant and kidnapped the male child of the informant. The accused kept the male child of the informant with her till 05.04.2024, after which the male child was recovered from the possession of the accused from her house.

After receiving the information the IO in this case started investigation and during his investigation he found that the present accused petitioners were actively involved in this case. After completion of his investigation he submitted charge sheet to the Court, in which the names of the present accused petitioners are mentioned as the prime accused persons. Upon further perusal it is known that on dtd. 12.04.2024 one of the accused namely, Sumatimani Sahu, who is the biological mother of the female girl child presented a prisoner’s petition before the S.D.J.M., Balasore to hand over the female girl child to her but the same was rejected by that Court in a well reasoned order and the custody of the said female girl child was handed over to the CWC, Balasore. At that time the accused petitioner was in jail. Now she has been granted bail by the Hon’ble High Court in BLAPL No. 6427 of 2024 on dtd. 16.07.2204. She was released on bail by this Court as per the above order of the Hon’ble Court on dtd. 20.07.2024. After that she along with her husband, who is also the co-accused in this case has filed thi