Factual Background
In the matter of Nesar Ahmed Khan v. State of Orissa Since 2015, the petitioner’s sister, her daughter, and her son-in-law have illegally imprisoned the petitioner’s underage daughter, who is around 12 years old. Despite many requests, the father of the youngster was unable to see his daughter. Although he had brought the issue up with the relevant police station and the Child Welfare Committee, no effective action was done by the authorities. On September 12, 2015, the petitioner went to the police station to ask them to free her young daughter from unlawful detention. Police did not, however, take any action. Later, the petitioner brought a case before the Rourkela Sub-Divisional Judicial Magistrate’s Court, where the Police were instructed to open an inquiry and register a case. On March 25, 2016, the petitioner also delivered a message to the head of the Sundargarh Child Welfare Committee. The Investigating Officer further reported that the child had been forcibly detained in Phulwari Sharif in Patna. On August 22, 2016, a search warrant was issued, however, when the investigating officer went to the location, the door was locked. According to the Police’s final report, the petitioner voluntarily gave the minor child to the opposing parties. After that, the Petitioner appeared before the Court and asserted that he and his daughter were subject to Muslim law and that adoption was totally against their custom.
Issue
- Whether there had been evidence that the opposing parties legally adopted the minor?
- whether the petitioner be granted full custody of the young child once again?
Courts conclusion
The Division Bench of Justice S. Talapatra and Justice Savitri Ratho of the Orissa High Court granted the petition in a criminal writ petition brought under Article 226 of the Indian Constitution, in which the natural guardian, the father of the minor daughter, requested the issuance of a writ of habeas corpus to produce the minor daughter in the Court and restore her custody to him.
The Court noted that the custody of the minor child was subject to being characterized as illegal imprisonment in the absence of adoption. The kid’s detention was attempted to be justified by the pretence of adoption, which does not exist in fact or law, according to the court, which ruled that even the kinship relationship, as had been stated, was insufficient to prevent the parents from obtaining custody of their child.