The Supreme Court on Friday partly stayed an Orissa High Court order that had invoked its parens patriae jurisdiction to restore the custody of a minor Muslim girl to her father in a habeas corpus case.
The parens patriae jurisdiction gives courts the power to act as the parent of any child, individual or animal in need of protection.
A top court vacation bench of Justices BV Nagarathna and Manoj Misra also sought the response of the Orissa government in the matter.
The case concerns the possible limits of territorial jurisdiction of High Courts to act in habeas corpus cases.
The father had earlier moved the Orissa High Court alleging illegal detainment of the child by the present appellants - his niece and his elder sister.
The High Court had on April 30 this year held that technical objections regarding territorial jurisdiction cannot be given much importance in such cases. It had observed that Article 226(2) of the Constitution enables it to issue writs to persons, authorities or governments located beyond its territorial limits, provided that at least a partial cause of action arises within its territorial jursidiction.
Further, proceedings under the Guardians and Wards Act initiated by the father's niece and sister for the child's custody were still pending, the Court had noted. Therefore, it directed the authorities to ensure that the child is given back to the father by the end of June.
The father of the girl resides at Rourkela, while the present appellants reside in Bihar.
The appellants before the top court pointed out that the biological parents had earlier abandoned the minor girl after claiming to be financially weak and not wanting another female child.
They stated that the custody battle arose after a property dispute broke out between the parties. Further, a similar plea by the mother was dismissed as withdrawn from the Patna High Court.
The plea stresses that the girl still wishes to reside with the appellants, and that the High Court had confused welfare of the child with custody/adoption rights.
"Even under Muslim Personal Law, the central idea for appointment of guardian or for deciding the issue of custody is to consider the welfare of the minor."
It is pointed out that the authorities had found no evidence of kidnapping in a criminal case lodged by the parents earlier.
The top court stayed the High Court's direction to hand back custody of the minor girl to the father, after opining that the other questions of law needed to be examined in a larger context.
The appeal was filed through Advocates Akriti Chaubey and Shantanu Singh. Advocate Shahrukh Alam appeared for the petitioners.
Advocates Hitendra Nath Rath and Sagarika Sahoo represented the private respondents.
[Read order]