Objections As To Territorial Jurisdiction Can’t Have Much Impact While Court Exercises ‘Parens Patriae’ Jurisdiction: Orissa High Court

Recently, the Orissa High Court ordered restoration of custody of a minor girl to her father by issuing the writ habeas corpus under the parens patriae jurisdiction. While passing the order, it held that technical objection, such as objections regarding territorial jurisdiction, cannot be accorded much importance while the High Court exercises its parens patriae jurisdiction.

The Division Bench of Justice Subhasis Talapatra and Justice Savitri Ratho rejected such objections and held,

“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 as much as the best interest of the minor has to be protected by the court and that should not be restricted by the technical objection.”

The petitioner filed the writ petition seeking restoration of custody of his minor daughter. It was averred that the minor, who is currently about 12 years old, has been illegally detained by the opposite parties since the year 2015. Opposite Parties Nos. 6, 9 and 11 are respectively sister, niece and son-in-law (niece’s husband) of the petitioner.

It was categorically submitted that the petitioner was denied to meet his daughter despite series of attempts made by him. He had reported the matter to the police as well as to the Child Welfare Committee (CWC) but no action was taken by those authorities.

He, therefore, approached the High Court praying for issuance of writ of habeas corpus, directing the opposite parties to produce the minor in the Court and to grant him his daughter’s custody.

However, the opposite parties urged the High Court to exercise restraint as it does not have the territorial jurisdiction as no cause of action had taken place within the territorial limits of the High Court nor the opposite parties were residing within the said territorial limits.

However, the Court opined that while Article 226(1) of the Constitution empowers a High Court to issue writs to a person, authority or government within its territorial limits de hors the question where the cause of action arose, Article 226(2) enables High Courts to issue writs to persons, authorities or governments located beyond its territorial limits provided a cause of action arises (in whole or in part) within the territorial extent of the said High Court.

Therefore, it held that Article 226(2) has extended the jurisdiction of the High Courts beyond their territories in cases where part of the cause of action arises within their territories.

In the instant case, the petitioner’s child was taken away from his custody from Rourkela under the District of Sundargarh, Odisha and was placed under a jurisdiction outside Odisha. Thus, the Court was of the view that as a part of the cause of action took place within the territorial jurisdiction of the Orissa High Court, it is empowered to issue the writ notwithstanding the fact that the child presently resides outside Odisha.

“As we find that the minor daughter of the petitioner had been taken away from Rourkela, Odisha and was not returned despite repeated demands of the petitioner, the custody has turned out to be wholly illegal, in the circumstances of the case. We can, thus, conveniently hold that a part of the cause of action arose within the territorial limit of this court,” it added.

Apart from that, the Court said that when interest of the child is concerned, the Court can very well exercise its parens patriae jurisdiction as the child is incapable of representing herself.

The Court noted that a proceeding under the Guardians and Wards Act was initiated by the opposite parties (the said couple). But as of the date of order, no competent Court had approved or declared the so-called adoption to be valid. Thus, it held,

“In absence of legal adoption, when the petitioner, being the father, has been demanding her custody, the minor has to be considered to be in the illegal detention of the Opposite Parties No.9 and 11.”

Accordingly, the Court ordered the opposite parties to hand-over custody of the child to the petitioner by the end of June this year, failing which the Registrar (Judicial) of the Orissa High Court was directed to issue the writ of habeas corpus by the force of this judicial order, to restore custody of the child with her father.

Case Title: Nesar Ahmed Khan v. State of Orissa & Ors.

Case No.: WPCRL No. 160 of 2021

Counsel for the Petitioner: Ms. Sagarika Sahoo & Mr. Anam Charan Panda, Advocates

Counsel for the Respondents: Mr. Janmejaya Katikia, Addl. Govt. Advocate for the State Authorities; Mr. Anshuman Ray, Advocate for Private Respondents

Citation: 2023 LiveLaw (Ori) 63

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