IMPORTANT POINT
Custody of child – Welfare of child is focal point.

JUDGMENT :

RAJESH BINDAL, J.

1. Leave granted.

2. This Court has been called upon to decide about the issue regarding custody of a minor child in parens patriae jurisdiction.

3. The child at present is 14 years of age, living since birth with the appellants and respondent No. 10.

4. Aggrieved against the order¹ [Order dated 03.04.2023] passed by the High Court² [High Court of Orissa at Cuttack] in a Writ Petition³ [WPCRL No. 160 of 2021] filed by respondent No. 2, who is biological father of the child, for restoration of her custody, namely, Sumaiya Khanam in his favour, the present appeal has been filed.

5. The High Court directed the Registrar (Judicial) of the Court to recover the child from the custody of appellant No. 2 and respondent No. 10, particularly from appellant No. 1 and respondent No. 10 and to hand over to respondent No. 2. The authorities of the State Government were also directed to execute the writ of Habeas Corpus and hand over the child to respondent No. 2.

6. Learned counsel for the appellants submitted that twin daughters were born to respondent No. 2 and his wife on 20.03.2010. The respondent No. 2 at that time was living at Rourkela. The children were born at Ranchi where their maternal grand mother was residing. As he was unable to take care of twins, on his request, one was left at Ranchi. Appellant No. 2 is the real sister of respondent No. 2. As the maternal grand mother could not take care of the small child, she was handed over to the appellant No. 2. This happened when the child was merely 2-3 months old. Ever since then, she is living with her. No issue was raised by respondent No. 2 at any time. It was only in the year 2015, a complaint was filed by respondent No. 2 with the police regarding kidnapping of the child against the appellants and respondents No. 7 and 9. As it was not a case of kidnapping, as alleged, closure report was filed by the police on 31.08.2016, which was accepted by the Court, vide order dated 11.02.2017. No objection was raised by respondent No. 2 to the acceptance of the closure report. However, a private complaint⁴ [ICC Case No. 120 of 2017] dated 27.03.2017 was filed by respondent No. 2 under Sections 363, 346, 120-B IPC with reference to the custody of the child by taking a different stand. The aforesaid complaint is stated to be still pending. In a petition⁵ [CRLMC NO. 549 of 2019] filed by the appellants and respondents No. 7 and 9 before the High Court seeking quashing of the complaint, further proceedings in the complaint have been stayed.

6.1 Immediately after filing of the aforesaid complaint by the respondent No. 2, wife of respondent No. 2, namely, biological mother of the child, filed petition⁶ [Criminal Writ Jurisdiction Case No. 1232 of 2017] in the High Court of Judicature at Patna praying for issuance of directions to the official respondents to recover the child from the wrongful confinement of the private respondents therein. However, when no case could be made out, the aforesaid petition was dismissed as withdrawn with liberty to avail remedy in accordance with law. The fact remains that thereafter the mother of the child did not avail any other remedy for seeking custody of the child. In fact, they were not interested at all. It was the litigation only for the sake of it. The child was left by respondent No. 2 with her maternal grand mother on account of the financial difficulty faced by him at that time.

6.2 More than four years thereafter, respondent No. 2 filed a Writ Petition in the High Court praying for custody of the child. While entertaining the Writ Petition, the High Court, vide order dated 11.02.2022, noticed the issues need to be examined in the Writ Petition. However, at the time of hearing the matter, the High Court framed different issues, as have been noticed in paragraph No. 57 of the impugned judgment.

6.3 He further submitted that number of documents were placed by the appellants before the High Court which clearly establish that the child e