Orissa High Court
Dinabandhu Mahapatra vs State Of Odisha & Others .... Opp. ... on 11 September, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(CRL)No.21 of 2023
Dinabandhu Mahapatra .... Petitioner
Mr. Srinivas Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. Rajesh Tripathy
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
JUSTICE S.S. MISHRA
ORDER
Order No. 11.09.2023 03. This matter is taken up through Hybrid
arrangement (video conferencing/physical Mode).
Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner Dinabandhu Mahapatra has filed this writ petition in the nature of habeas corpus with a prayer for direction to produce his children before this Court.
Learned counsel for the petitioner submitted that the petitioner married to the opposite party no.3 Kiran Achari on 03.03.2014 and out of their wedlock, a son and a daughter were born who are now aged about eight years and four years respectively. He further submitted that both the children have been admitted in the school but they are now with the opposite party no.3 and there was a dispute between the petitioner and the opposite // 2 // party no.3 and they are residing separately. The police has intervened in the matter and taken the children from his lawful custody and handed over to the custody of opposite party no.3 illegally. He further submitted that without taking resort to the provision of law contemplated under section 6 of the Hindu Minority and Guardianship Act 1956, the police have assisted the opposite party no.3 in taking the children from the lawful custody of the petitioner and handed over them to the custody of their mother.
Learned counsel for the State submitted that the writ petition is not maintainable and further argued that opposite party no.3 has presented a written report before the Inspector in-charge of Bargarh Town police station. Pursuant such written report, Bargarh Town P.S. case No.542 dated 04.09.2022 was registered under section 498-A/294/323/506/34 of I.P.C. and section 4 of the D.P. Act against the petitioner and other in-laws family members and during the course of investigation, the police visited the house of the petitioner and found that the children seeing the opposite party no.3 showed their willingness to stay with her.
The opposite party no.3 also asked her mother in- law and father in-law to take her children with her and they also agreed to the proposal and accordingly, the opposite party no.3 took her children.
Learned counsel for the State also placed the statements of the two children recorded by the Page 2 of 3 // 3 // Investigating Officer from which it reveals they have stated that their mother is better than their father. Learned counsel further submitted that the petitioner has alternative remedy for seeking the custody of the two children and further submitted that the writ petition is not maintainable in the eye of law.
Considering the submissions made by the learned counsel for the respective parties, the counter filed by the opposite party no.2 and the ratio laid down by the Hon'ble Supreme Court in the cases of Tajaswini Gaud and others -Vrs.- Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 Supreme Court Cases 42 and Jose Antonia Zalba Diez Del Corral Alias Jose Antonio Zalba -Vrs.- The State of West Bengal & others reported in (2021) 6 S.C.R. 767, we find that no exceptional case has been made out by the petitioner to entertain this writ petition. The petitioner has got alternative remedy to approach appropriate authority to seek the custody of his minor children.
In view of the above, the writ petition stands disposed of.
Issue urgent certified copy of the order as per Rules.
( S.K. Sahoo)
Judge[
(S.S. Mishra)
Judge
sipun Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2023 15:32:05 Page 3 of 3