Orissa High Court
Sukanta Kumar Bisoyi vs State Of Odisha & Others .......... ... on 16 March, 2023
Author: S. Talapatra
Bench: S. Talapatra, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No.46 of 2022
Sukanta Kumar Bisoyi ......... Petitioner
Mr. G. Misra, Sr. Adv.
Mr. A.K. Dash, Adv., Mr. D.K. Patra, Adv., Mr. J.R. Deo, Adv.
-Versus-
State of Odisha & others .......... Opposite Parties
Mr. S.S. Kanungo, AGA (For O.Ps. No.1 to 7)
Mr. S.B. Panda, Adv. (For O.P. No.8)
WPCRL No.39 of 2022
Manjeet @ Manjit Singh Pardesi (Dr.) ......... Petitioner
Mr. S.B. Panda, Adv.
-Versus-
State of Odisha & others .......... Opposite Parties
Mr. S.S. Kanungo, AGA (For O.Ps. No.1,2 &3)
Mr. Gautam Misra, Sr. Adv. (For O.Ps.4 & 5)
CORAM:
JUSTICE S. TALAPATRA
JUSTICE M.S. SAHOO
Judgment
16th March, 2023
S. Talapatra, J. Custody of two minor children namely, Shahad Kaur aged
about 15 years and Aangad Gurtej, aged about 7 years, forms the
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sheet-anchor of the controversy raised in these writ petitions for
issuing the writ of Habeas Corpus. Admittedly, Shahad Kaur, the
minor girl is in the custody of Sukanta Kumar Bisoyi (the Opposite
Party No.4) in WPCRL No.39 of 2022 and the petitioner in WPCRL
No.46 of 2022 whereas Aangad Gurtej, the minor boy, is under the
custody of Manjeet @ Manjit Singh Pardesi (Dr.), the petitioner in
WPCRL No.39 of 2022 and the Opposite Party No.8 in WPCRL
No.46 of 2022.
2. It is an undisputed position that both the minor children are
not uterine siblings. They had lost their parents. From the deed of
adoption dated 20.11.2008, Annexure-5 to the writ petition being
WPCRL No.39 of 2022 it transpires that Shahad Kaur was not the
name of the minor girl, earlier, she was known as Khushee Sood. It
has been claimed by the petitioner in WPCRL No.39 of 2022 that his
sister namely Ms. Joginder Kaur had adopted Khushee Sood and
renamed her Shahad. Thereafter, Shahad Kaur was admitted in St.
Arnold's School at Rourkela showing Joginder Kaur as her mother.
3. This claim has been contested seriously by the writ petitioner
of WPCRL No.46 of 2022 by stating that Sukanta Bisoyi (the
Opposite Party No.4) has claimed that for looking after the well-being
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of the minor girl, the Sub-Divisional Magistrate, Panposh handed over
the custody of the minor girl to him [the Opposite Party No.4].
According to the Opposite Party No.4, Aangad Gurtej is his biological
son from his marriage with Joginder Kaur. The Opposite Party
No.4 in WPCRL No.39 of 2022 has stated that the minor girl is the
adopted daughter of Joginder Kaur and as such, he has the right to
have the custody of both the children. During treatment of his wife at
Rourkela, the petitioner, Manjeet @ Manjit Singh Pardesi (Dr.) had
taken the custody of the children deceitfully. After death of his wife
after suffering cancer, the said petitioner maintained them in a
orphanage run by Sahayog Orphanage at Biramitrapur, which
according to the said Opposite Party No.4 is run by the petitioner
himself.
4. It has been stated by the Opposite Party No.4 that the
petitioner has manipulated many documents. The Opposite Party No.4
that in his counter affidavit has averred as follows:
"The petitioner brought back the
remains of Late Joginder Kaur along with the
children to Sundergarh for performance of
last rites and soon thereafter, took back the
children forcibly to Khunti in Jharkhand. The
petitioner had kept the daughter of the
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petitioner in an Ashram School forcefully in
Ranchi, against her wishes. Shahad Kaur
managed to escape and re-joined the
Opposite Party No.4. The Opposite Party
No.4 learned from Shahad Kaur that the
petitioner has kept his son, Aangad Gurtej,
illegally detained in 'Sahayog Orphanage' at
Birmitrapur, which is run by the petitioner
himself." (Para 17).
5. What has been stated as regards the custody in Para 17 of the
counter affidavit filed by the Opposite Party No.4 is more or less an
admitted position. At present, Shahad Kaur, the minor girl is in the
custody of the Opposite Party No.4 in WPCRL No.39 of 2022 where
as Aangad Gurtej is in the custody and control of Manjeet @ Manjit
Singh Pardesi (Dr.) and he is kept in an orphanage.
6. A slew of allegations have been leveled against each other by
the principal contenders of the custody. It appears to us that against
the petitioner in WPCRL No.39 of 2022, the allegation of grabbing
the properties left by Joginder Kaur since deceased by means of the
power of attorney, purportedly executed by Joginder Kaur, who has
been claimed to be the wife of the petitioner of WPCRL No.46 of
2022. Each petitioner claims custody of the children. According to the
petitioner in WPCRL No.39 of 2022, he is the brother of Joginder
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Kaur the deceased. On the other hand, the petitioner of WPCRL No.46
of 2022 namely, Sukanta Kumar Bisoyi has claimed that late Joginder
Kaur was his wife and she had adopted Shahad Kaur, on observing the
legal formalities.
7. The Opposite Party No.4 (the petitioner in WPCRL No.46 of
2022) has claimed that Aangad Gurtej, the minor child, is the
biological Son of both Sukanta Kumar Bisoyi [the petitioner in
WPCRL No.46 of 2022 and the Opposite Party No.4 in WPCRL
No.39 of 2022] and Joginder Kaur, sister of the petitioner of WPCRL
No.39 of 2022 namely, Manjeet @ Manjit Singh Pardesi (Dr.). The
Opposite Party No.4 has further contended that the properties as
reflected at Annexure-A1 series were sold during the lifetime of
Joginder Kaur. The Opposite Party No.4 in WPCRL No.39 of 2022
had never objected, even though he has claimed that Joginder Kaur
and he were living as husband and wife. The petitioner in WPCRL
No.39 of 2022 has categorically disputed the claim of the marriage of
the Opposite Party No.4 with Joginder Kaur and stated that to
substantiate such claim, some documents including the birth
certificate of Aangad Gurtej have been manipulated. The petitioner in
WPCRL No.39 of 2022 has claimed that Joginder Kaur was a spinster
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and she did not marry anyone. Such allegation, according to the
Opposite Party No.4, is malicious and without foundation. In this
juncture, it may be noted that both the writ petitioners are at
loggerhead over the claim of the custody of these minor children.
8. It is discernable from the records that Joginder Kaur has left
valuable properties and hence, the issue of inheritance occupies
importance and that cannot be brushed aside casually. The petitioner
in WPCRL No.39 of 2022 has admitted that Joginder Kaur has left
properties and as such those properties are to be managed for on
behalf of the minor. The reliefs claimed in WPCRL No.39 of 2022 are
as follows:
"I. Order dated 29.03.2022 passed by the Opp.
Party No.2-Sub-Divisional Magistrate, Panposh,
Sundargarh in Criminal Misc. Case No.76/2022 vide
Annexure-1 may be quashed;
II. Writ in nature of Habeas Corpus may be
issued directing the O.P. No.-3IIC, Biramitrapur
dtd.20.04.2022 Chhend P.S., Sundargarh to cause
production of the O.P. No.5-Minor Girl before this
Hon'ble Court or before the O.P. No.-2-SDM, Panposh
on the date that would be appointed by this Hon'ble Court
and upon hearing both the sides the said Authority may be
directed to send the O.P. No.5 to appropriate Shelter
Home;
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III. The O. P. No.2-Authority may further be directed
to hear the Petitioner along with the O. P. No.4, examine
all relevant documents which will be produced before him
by both the parties and thereafter by passing a reasoned
order, hand over interim custody of the O. P. No.5 to the
Petitioner till disposal of the Criminal Misc. Case
No.76/2022 now pending before him;
IV. May further be pleased to observe that the
Petitioner or the O. P. No.4 may take permanent custody
of the O. P. No.5 pursuant to appropriate decree that may
be passed by the Competent Civil Court under the
provisions of the Hindu Minority & Guardianship Act of
1956 at the behest of either of the parties until the O. P.
No.5 attains the age of 21 years;
V. Any further or other appropriate
order(s)/direction(s)/writ(s) may kindly be issued in the
fitness of the case;"
The reliefs prayed in WPCRL No.46 of 2022 are as follows:
"For direction the Opposite Party Nos.6 to 7 to
rescue Aangad Gurtej-the son of the petitioner
from the illegal detention of the Opp. Party No.8
and to produce him before this Hon'ble Court at
the instance of the petitioner on an urgent basis
and further be pleased to pass any other
order/orders as may be deemed fit and proper."
We have also noticed that a few Civil and Criminal proceedings have
been instituted by the petitioners in both the writ petitions (WPCRL
No.39 of 2022 and WPCRL No.46 of 2022) against each other. As it
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has been alleged by the petitioner in WPCRL No.46 of 2022 that
Aangad Gurtej, the minor, has been forced to live in an orphanage. It
has been further alleged that the petitioner in WPCRL No.39 of 2022
has been searching for means to take away Shahad Kaur.
9. We thought it would be appropriate to have a brief interaction
with the minor children and accordingly, we had directed the
petitioners to produce the minor children before us. After interaction,
we had passed an order on 08.07.2022, as available in the record of
WPCRL No.46 of 2022. The identical order was also passed in
WPCRL No.39 of 2022. The text of the said order is as follows:
"3. On last occasion, as recorded in the
order dated 07.07.2022, we had interaction with the
children. We have noted their views. To come to a
resolution of the dispute, we would hear the counsel for
the respective parties comprehensively on the next date.
4. List this matter on 18.07.2022 along
with WPCRL No.39 of 2022. Meanwhile, we would
request Mr. S.S. Kanungo, learned Addl. Government
Advocate for the State-Opp. Parties to provide us the
names of two best Boarding Schools known for
dissemination [of knowledge] and maintaining the
standard of education, care and discipline."
Thereafter, the matter has been taken up for order on 04.08.2022.
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10. It is pertinent to note that by the order dated 18.07.2022, we
had directed the petitioners of both the writ petitions to file an
undertaking affirmed by affidavits stating that they would bear all the
expenses of the good Boarding Education School and the other costs
for well-being of both the children. It was directed that such
affidavits/undertakings shall be filed before the next date i.e.
04.08.2022. It was also noted that for merely filing the undertaking,
no right in favour of either of the parties who are directed to file such
undertaking will rise or consolidate. While deciding the matter, those
undertakings may be acted upon. We should note that both the
petitioners have filed such undertakings by showing their bona fide.
The undertaking filed by the petitioner on WPCRL No.39 of 2022
namely, Manjeet @ Manjit Singh Pardesi (Dr.) has reflected that the
children will get emotional support from the family of the petitioner
particularly, from him and his wife, if they will be admitted into a
reputed Boarding School at Ranchi, as the wife of the petitioner often
times stays in Ranchi, she will be able to visit the children on regular
intervals.
11. However, it has been later on, stated that the other petitioner
namely, Sukanta Kumar Bisoyi does not have any means to bear the
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expenses of education of the minor children who are under reference.
We do not find any categorical statement to bear the education
expenses of the minor children from the petitioner in WPCRL No.39
of 2022. He has stated that he has the ability to pay such expenses. On
the contrary, the Opposite Party No.4 has made the undertaking,
which is supported by an affidavit. Para 5 of the said undertaking
reads as follows:
"That the Opp. Party No.4 hereby
unequivocally and unambiguously undertakes
that he is ready to bear the entire educational
and other ancillary expenses of both Aangad
Gurtej and Shahad kaur in full. This undertaking
stands for the expenses of any school and
lodging that this Hon'ble Court might deem fit
for both the children and the quantum of the
expenses (high or low) would not absolve the
Opp. Party No.4 from this undertaking in any
manner."
12. It is apparent from the said undertaking that the Opposite
Party No.4, (the writ petitioner of WPCRL No.46 of 2022) shall bear
all the expenses of education of the minor children, if this Court direct
their admission in a Boarding School. From reading of the averments
and the scrutiny of documents, it has transpired that there are the intra-
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party litigation or prosecution are pending. This Court will not make
any observation on the merit of those litigations. Those would be
adjudicated strictly in accordance with law. We make it abundantly
clear that our decision in these writ petitions shall not influence the
outcome of these cases.
13. Even the petitioners in theses writ petitions being WPCRL
No.39 of 2022 and WPCRL No.46 of 2022 will be at liberty to
institute the suit in respect of any civil disputes either relating to the
guardianship and the properties of those minor children. But the
custody of the minor will be regulated by this order, unless reviewed,
modified and altered. But without the finality of the guardianship in
respect of the properties, the petitioners shall not deal with any of the
properties where the minors have right over the property. It has been
stated that the petitioner in WPCRL No.39 of 2022, by virtue of the
power of attorney, sold out some properties of Joginder Kaur who has
been claimed to be the wife of the petitioner in WPCRL No.46 of
2022. The proceeds of those sale, if any, even which has in the life
time of Joginder Kaur, shall be brought within the properties to be
inherited by the children in accordance with law.
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14. A specific challenge has been made against the order dated
29.03.2022 passed by the Opposite Party No.2 the Sub Divisional
Magistrare, Panposh, Rourkela in Misc. Case No.76 of 2022
(Annexure-1 to the writ petition being WPCRL No.39 of 2022). In
view of our contemplated decision that we will record in the latter
part, the said order will lose all its relevance and as such, we declare
the said order to have no force for the time being.
15. At this juncture, we must note that after interaction with the
children, we decide that in their best interest, they should be put in a
good Boarding School for their best care and education. This
arrangement shall continue till the children attain the majority. We
direct both the petitioners namely, Sukanta Kumar Bisoyi as the
petitioner in WPCRL No.46 of 2022 and Manjeet @ Manjit Singh
Pardesi (Dr.) as petitioner in WPCRL No.39 of 2022 to deposit Rs.5
lakhs for each of the children by opening the bank account in the
name of the children in a bank situated within or in close vicinity of
the Boarding School where these children will be admitted and lodged
for their education and care.
16. Further we make it clear that the petitioners shall deposit the
sum of 5 lakhs each in the individual account of both the minor
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children 7 days prior to their admission. If the petitioner of WPCRL
No.39 of 2022 fails to deposit the said sum, the petitioner of WPCRL
No.46 of 2022 may deposit the said amount. The children will be
allowed to defray their expenses from the said amount. The said
account shall be recouped by the petitioners of both the writ petitions
to maintain that said level of amount i.e. five lakhs all the time. That
apart, the authority letter shall be signed by the petitioners in favour of
the authorized officer of the said Boarding School so that in the event
of any necessity, the authorized officer may draw the required amount
from the said account. At our request, Mr. S.S. Kanungo, learned
Addl. Government Advocate has suggested the name of the schools
where the minor children can be admitted. Mr. Kanungo, learned
Addl. Government has suggested that KIIT International School
which is one of the best boarding schools, situated in Bhubaneswar
shall be the ideal boarding school for the children as both of them are
very bright in their studies. They be allowed to build their future.
17. We accept his suggestion and direct both the petitioners in
whose custody the children are now living to allow those children to
take admission in the said Boarding School. In the perspective
circumstances of this case, we would like to refer Rohith Thammana
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Gowda Vs. State of Karnataka & Ors., (Judgment dtd.29.07.2022
delivered in Civil Appeal No.4987 of 2022) in which the Apex Court
has talked about transcending the jurisdiction for protection of the best
interests of the children. The fees or the charges of the Boarding
School shall be borne by the petitioners equally and in due time, they
shall make the payment without any default. The children shall not
face any difficulty on that account. They are further directed to pay the
admission fees, admission and other charges for the boarding by the
stipulated date, as fixed by the authority of school and the boarding.
The petitioners will be allowed to visit the children once in fortnight.
But their visit should not collide. The school authority is requested to
make the arrangement for visiting the children, having due regard to
their rules.
18. We are persuaded to make a direction on the management of
the KIIT International School, Bhubaneswar to accommodate these
unfortunate children in their school and grant them maximum
concessional fee or charges considering their condition. The District
Secretary, the District Legal Services Authority, Khurdha,
Bhubaneswar shall function as the guardian ad litem till the minor
children will be in the said boarding school. The District Secretary
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shall coordinate with the petitioners for compliance of this order and
admission of the minor children in the KIIT International School. The
District Secretary, the District Legal Services Authority is authorized
to take any decision having regard to the best interest of the children
in emergent situation or in other matters, the District Secretary may
approach this court for further orders, as may be required, for
circumstance which are not covered by this order.
19. The District Secretary Legal Services Authority, Khurdha,
Bhubaneswar shall supervise their admission and payment of their
fees and take information from time to time about their studies and
care. The District Secretary Legal Services Authority, Khurdha,
Bhubaneswar may take assistance from the Child Welfare Committee
of the District in the event of necessity.
20. In view of the above observations and directions, these writ
petitions stand disposed of. There shall be no separate order as to
costs. Free copy of this order be supplied to the counsel for the
parties.
21. Before we part the records, we place our deep appreciation for
counsel of the parties for invaluable co-operation and assistance. We
also commend specially the role played by Mr. Kanungo, learned
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Addl. Government Advocate in assisting us nominating the best-suited
school.
............................
(S. Talapatra, J.) M.S. Sahoo, J. I Agree.
........................... (M.S.Sahoo, J.) Orissa High Court, Cuttack The 16th day of March, 2023. R.R. Nayak, Jr. Stenographer.