JUDGMENT :

A. K. Mishra, J.

This writ for habeas corpus is filed by the mother petitioner seeking custody of her tiny tot daughter.

2. Narrated in a nutshell, the grievance of the petitioner is that on 19.07.2016 she gave birth a girl child in the Moon Hospital, Cuttack. On 31.03.2017 at 7 A.M., while the baby was sleeping on the outer verandah of her house and she was busy in the household work inside, opposite party no.4 Ganeswar Nayak came in a vehicle bearing registration No.OR-05-AR-6120 and took away the baby. The petitioner clamored for rescue of the child but it was in vain. Later she came to know that opposite party no.4 had sold her daughter to opposite party no.5 Biswajit Nayak for a consideration of Rs.20,000/-. The petitioner made efforts to get back her daughter but opposite party no.5 refused to hand over the custody of the child. The petitioner lodged written F.I.R. before the I.I.C., Athagarh Police Station (Opposite Party no.3) but the same was not registered. Police did not respond to her repeated request. Petitioner sent the written F.I.R. by registered post vide Annexure-3 to opposite party no.3. Even on 19.6.2017 she sent e-mail to Superintendent of Police, Cuttack vide Annexure-4. On 27.6.2017 the petitioner brought the inaction of the I.I.C., Athagarh to the notice of Superintendent of Police, Cuttack. Being unsuccessful in all her efforts, she filed this writ petition on 12.07.2017.

3. On behalf of opposite party nos.2 and 3, the I.I.C., Athagarh Police Station filed counter affidavit. It is stated therein that the petitioner was the mother of 3 girl children. The baby in question was her 4th issue.

Further it is stated that as per the Panchayatnama, the petitioner while returning home by the Ambulance of opposite party no.4, asked the driver, opposite party no.4 either to handover the baby to somebody else or to leave the baby in any orphanage and to keep the matter in secrete. The opposite party no.4 instead of working out the proposal of the petitioner, handover the newborn baby to the wife of opposite party no.5, namely Bismita Nayak who accepted the baby as her new daughter and celebrated all functions normally done in every family in the eve of newborn child. Thereafter the petitioner mother did not enquire about the child. She deserted the child declaring that a dead female child was born. She even observed the obsequies ceremony for the dead child. There was a ‘Panchayatnama’ in presence of about 100 villagers on 18.06.2017 vide Annexure-A/3. It was mentioned therein that the petitioner having not performed her duty towards the baby child and having acted in cruel manner, was not entitled to the custody of the child.

Further it is stated in the counter affidavit that Athagarh P.S. Case No.161 dtd.18.7.2017 has been registered and is under investigation.

4. Opposite party nos.4 and 5 have filed joint counter affidavit duly sworn by opposite party no.4. It is stated therein that opposite party no.4 being the Ambulance driver, had taken the petitioner with her husband to Moon Hospital. On 19.7.2016 the petitioner gave birth to a girl child. She did not want to keep the child and approached number of persons and Hospital staff to take the girl child or else she would kill her. Nobody agreed. She along with her child and husband returned home in the Ambulance of opposite party no.4. On the way, the petitioner attempted to throw the child in Sapua River. She was restrained by opposite party no.4. The petitioner requested opposite party no.4 to keep the child with a promise not to disclose before any villagers as she would declare that a dead child was born to her. Opposite party no.4 assured that he would keep the child with his cousin brother and accordingly since 19.7.2016 the child has been residing under the care and custody of opposite party no.5.

It is further stated in the counter affidavit that opposite party no.5 is serving as Havildar in Indian Army and his wife Bismita Nayak has adopted the child