SWAPNA SATPATHY @ UPADHYAYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed by the wife as the petitioner for issuance of writ of habeas corpus for recovering the son of the petitioner from the custody of the opp. Party no. 4 ­ husband allegedly under wrongly confinement.

(2.) THE opp. Party no. 4 ­ husband raised a question of maintainability of the writ petition. Mr. P.K. Ray, learned counsel for the petitioner ­ wife relied upon the decisions of the Allahabad High Court in Habeas Corpus writ petitions in the cases of Baby Kavya Awasthi and another v. State of U.P. and others, (Civil Misc. Habeas Corpus Writ Petition No. 10996 of 2013 decided on 22.3.2013) and Smt. Sunita Malik v. Dharam Veer Singh Malik and another, (Habeas Corpus Writ Petition No. 2641 of 1990 decided on 1.8.1991), where the Allahabad High Court negatived the preliminary objection with regard to maintainability of a writ of habeas corpus qua the provisions made in the Guardians and Wards Act, 1890 (for short, 'the Act') by holding that if proceedings under the Act is initiated by the mother, for the custody of her minor daughter aged about two years, the proceedings and the appeal thereunder will take long time to finally decide the immediate issue of custody and, therefore, the said remedy under the Act cannot be said to be an adequate remedy nor can it be said to be an efficacious remedy.

(3.) MR . Panda, learned counsel appearing on behalf of the opp. Parties 4 to 8, however, submitted that the petitioner earlier took recourse to section 26 of the Hindu Marriage Act for custody of the breast fed child before the Judge, Family Court, who granted the custody of the child in favour of the petitioner (mother) against which the opp. Party no.4 ­ husband preferred MATA No. 11 of 2013 and this Court finding that an application under section 26 of the Hindu Marriage Act cannot be maintained when no proceeding is pending under the said Hindu Marriage Act, reversed the said order of the Judge, Family Court and, thereafter, the child is in custody of the opp. Party no. 4 ­ husband (father). Mr. Panda further submitted that taking the child from his father's custody will adversely affect the sentiments and upbringing of the child. He also submitted that if the custody of the child is given to the petitioner ­ wife, she will not be able to look after the upbringing of the child as she is not cable of doing so.