Orissa High Court
Sumatimani Sau & Another vs State Of Odisha & Others ....... ... on 29 January, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4792 of 2024
(In the matter of an application under Section 482 of the Code of
Criminal Procedure, 1973)
Sumatimani Sau & another ....... Petitioners
-Versus-
State of Odisha & others ....... Opposite Parties
For the Petitioners : Mr. Prasanna Kumar Parhi, Advocate
For the Opp. Parties : Ms. Sarita Maharana
Additional Standing Counsel
(For the Opp. Party No.1)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 16.01.2025 : Date of Judgment: 29.01.2025
S.S. Mishra, J. Heard Mr. Prasanna Kumar Parhi, learned
counsel for the petitioners and Ms. Sarita Maharana,
learned Additional Standing Counsel for the State.
2. In this petition, the petitioners are seeking quashing
of the order dated 01.08.2024 passed by the learned
J.M.F.C., Balasore in connection with Balasore Town P.S.
Case No.125 of 2024 corresponding to C.T. Case No.318
of 2024, whereby the application moved by the petitioners
for delivery of the custody of their daughter to them has
been turned down.
3. The petitioners are accused in connection with
Balasore Town P.S. Case No.125 of 2024 corresponding to
C.T. Case No.318 of 2024 registered for the alleged
commission of the offences punishable under Sections
451/363 of the IPC pending in the Court of the learned
J.M.F.C., Balasore.
4. The allegation against the petitioners is that, the
complainant reported at the local P.S. inter alia, alleging
that on 02.04.2024, he had admitted his new born baby
at the Special Care Unit, Balasore Headquarter Hospital
and during the treatment on 04.04.2024 in the afternoon,
someone had taken his son from the hospital bed. Hence,
the F.I.R.
5. The investigation of the case revealed that, the
petitioners have kidnapped the baby boy from the
hospital by abandoning their own daughter. The
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abandoned biological daughter of the petitioners has been
given to the custody of the respondent agency. The
petitioners are being prosecuted for the offence as alleged
in the F.I.R. mentioned above.
6. Both the petitioners have been admitted to bail and
they are facing the trial for the offences they are charge-
sheeted for. At this stage, they moved an application
before the Court below seeking delivery of the custody of
their daughter to them, which has been turned down by
the learned trial Court by the impugned order, inter alia,
observing as under:
"I have perused the case record along with
other connected relevant documents viz. The
FIR, The Charge-sheet, 161 Statement of the
witnesses, the case diary, seizure list, order of
the S.D.J.M., Balasore on dtd. 15.04.2024 and
other documents related to this case. On perusal
it is found that this case was instituted on the
basis of written report given by one Susanta
Barik. As per his information on dtd.
02.04.2024 when he had admitted his infant
child (of age 8 days) in the New Born Special
Care Unit, O&G Department at DHH, Balasore,
on dtd. 04.04.2024 at about 12:00 noon, his
child was stolen from that Unit. Also as per the
allegation of the prosecution, the accused
namely, Sumatimani Sau with an urge to have a
male child, left her new born baby daughter on
the bed of the informant and kidnapped the
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male child of the informant. The accused kept
the male child of the informant with her till
05.04.2024, after which the male child was
recovered from the possession of the accused
from her house.
After receiving the information the IO in this
case started investigation and during his
investigation he found that the present accused
petitioners were actively involved in this case.
After completion of his investigation he
submitted charge sheet to the Court, in which
the names of the present accused petitioners
are mentioned as the prime accused persons.
Upon further perusal it is known that on dtd.
12.04.2024 one of the accused namely,
Sumatimani Sahu, who is the biological mother
of the female girl child presented a prisoner's
petition before the S.D.J.M., Balasore to hand
over the female girl child to her but the same
was rejected by that Court in a well reasoned
order and the custody of the said female girl
child was handed over to the CWC, Balasore. At
that time the accused petitioner was in jail. Now
she has been granted bail by the Hon'ble High
Court in BLAPL No. 6427 of 2024 on dtd.
16.07.2204. She was released on bail by this
Court as per the above order of the Hon'ble
Court on dtd. 20.07.2024. After that she along
with her husband, who is also the co-accused in
this case has filed this petition to get the
custody of her female girl child.
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It is learnt from the case record that the
identification of the female child is no where
mentioned in the record and the custody of the
child is no where connected with this case.
Regarding the welfare and custody of the child
this Court is of the considered view that this
Court lacks the jurisdiction to entertain this
petition. So the petitioners are at liberty to
approach appropriate forum for redressal of
their grievance. Accordingly, the petition filed by
the accused petitioners stands dismissed."
The petitioners are aggrieved by the said order and
have assailed the same in the present petition.
7. The notice was issued to the opposite parties. The
custody of the child is under the opposite party Nos.7 and
8. The said opposite parties were directed to be served
through the I.I.C., Balasore. The service is sufficient. They
have sent a letter dated 10.01.2025 to the Registry of this
Court rather than appearing in the Court, inter alia,
stating as under:
"In inviting reference to the subject cited, I
want to state you that one girl child namely
Nancy, CWC No.83/2024, was received from
SNCU, DHH, Balasore as per kind instruction
of DCPO, Balasore letter no. 230/DCPU dated
16.04.2024 and she is staying in our
Specialised Adoption Agency, UBBS, Balasore
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as per kind order of Child Welfare Committee,
Balasore.
Therefore, Manager, SAA, UBBS, Balasore
has followed official instructions of the senior
authorities and has no intervention in decision
making regarding the child.
Submitted for kind perusal and necessary
order."
8. The girl child has been handed over to the opposite
party Nos.7 & 8 by the Child Welfare Committee by the
order dated 19.04.2024, which reads thus:
"Today at about 12.30 P.M. Swapneswar
Hembram, Counselor UBBS, Balasore
produced one unknown new born girl child
named as (Nancy) age not known. He also
submit his production report in prescribe
format in FORM 17 along with the discharge
card of SNCU of DHH, Balasore. From the
discharge card it shows that the child is
admitted on 04/04/2024 and discharge date
19/04/2024. He also submits the letter
No.2391 dated 12.04.2024 of DMO-cum-
Superintendent of DHH, Balasore as the child
fit for discharge.
From the fact and circumstance
parents/legal guardian are not appear to take
the unknown child so as an interim measure
the child is a CNCP and belongs to category
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abandoned one. Hence the CWC, Bench
decided to restore the child in SAA, UBBS,
Balasore for her care and protection will
further order.
As the child is unknown to one claimant
present before the committee till now, so the
child need to be legally free for adoption. The
DCPO, Balasore instructed to conduct an
inquiry under what circumstances the child
was admitted in the DHH, Balasore by whom
on the dated 04.04.2024 and also registered
SDE No. at local police station.
It is further requested, as the child is
abandoned one, so it is felt necessary to
publish the photograph of the child in at least
two daily leading widely circulated newpaper
(Odia & English) for tracing the biological or
legal guardian if any as per Adoption
regulation guideline 2022."
9. The petitioners have approached this Court by
challenging the impugned order dated 01.08.2024 passed
by the learned J.M.F.C., Balasore, inter alia, praying that,
they being the biological parents of the child in subject,
his custody should be given to them.
10. The petitioners have contended that they are the
biological mother and father of the newborn baby girl.
Therefore, they have not given any consent for giving the
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girl child on adoption. There is no dispute raised by any
of the parties at the Bar doubting the parenthood of the
petitioners in so far as the girl child is concerned.
11. Mr. Parhi, learned counsel for the petitioners has
relied upon Section 30 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 and submitted that the
biological parents of a child of 9 months is automatically
entitled for the custody even in the fact situation of the
present case. Emphasis is supplied to Section 30 (vi) of
the Act, which reads as under:
"ensuring care, protection, appropriate
rehabilitation or restoration of children in need of
care and protection, based on the child's
individual care plan and passing necessary
directions to parents or guardians or fit persons
or children's homes or fit facility in this regard."
He has submitted that the infant of 9 months is
depending upon the breast feeding of the biological
mother. Therefore, depriving the infant from the breast
feeding is in direct violation of her rights enshrined under
Article-21 of the Constitution of India. Mr. Parhi referred
to the case of L. Chandran VS Venkatalakshmi And
Anr (AIR1981AP1) wherein it has been held by the
Learned Andhra Pradesh High Court that:
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"Child is a person within the meaning of Article 21
of the Constitution. It has, therefore, a right to its
life as guaranteed by Article 21 of the Constitution.
The word 'life should be understood in this context
as expansively as it has been understood in other
contexts as comprehending more than mere animal
existence."
Thus, the right to life as guaranteed under Article 21
includes the right of the minor child to be cared for,
nurtured, and brought up in a loving and protective
environment. The denial of custodial rights to the
biological parents violates the constitutional rights of the
child and the parents as well. Moreover, there is no
evidence to suggest any incapacity or unfitness of the
petitioners to provide a safe and nurturing environment.
The welfare of the child would be best served by granting
custody to the petitioners, ensuring her holistic
development in the care of her biological parents. Mr.
Parhi has further submitted that paramount
consideration is the right and welfare of the child. Mr.
Parhi contended that the biological parents of the child
who alleged to have abandoned the child and kidnapped
the new born baby boy would be established in the trial.
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Till the trial is concluded, the right of the infant baby girl
should not be taken away. He has submitted that in the
facts and circumstances of the case, the custody of the
child should be restored to the biological parents. He has
also relied upon Section 40 of the Act, 2015, which reads
as under:
"40. Restoration of child in need of care and
protection- (1) The restoration and protection of a
child shall be the prime objective of any Children's
Home, Specialised Adoption Agency or open
shelter.
(2) The Children's Home, Specialised Adoption
or an open shelter, as the case may be, shall take
such steps as are considered necessary for the
restoration and protection of a child deprived of
his family environment temporarily or
permanently where such child is under their care
and protection.
(3) The Committee shall have the powers to
restore any child in need of care and protection to
his parents, guardian or fit person, as the case
may be, after determining the suitability of the
parents or guardian or fit person to take care of
the child, and give them suitable directions."
Explanation.- For the purposes of this section,
"restoration and protection of a child" means
restoration to -
(a) parents;
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(b) adoptive parents;
(c) foster parents;
(d) guardian; or
(e) fit person.
[(4) The Committee shall submit a quarterly
report regarding restored, dead and runaway
children to the State Government and the District
Magistrate in such form as may be prescribed.]"
The reading of the provision makes it clear that the
natural or biological parents of the child have the
superior right of custody over others.
It has been further contended by Mr. Parhi that in
any proceeding before any Court, the custody or
upbringing of a minor is in question, then, in deciding the
factor, the Court must regard is the minor's welfare as the
first and paramount consideration. He has relied upon
Halsbury's Laws of England, Fourth Edition, Vol. 24, para
511 at page 217, to substantiate his arguments, which
reads as under:
"Where in any proceedings before any court the
custody or upbringing of a minor is in question,
then, in deciding that question, the court must
regard the minor's welfare as the first and
paramount consideration, and may not take into
consideration whether from any other point of view
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the father's claim in respect of that custody or
upbringing is superior to that of the mother, or the
mother's claim is superior to that of the father."
12. Ms. Sarita Maharana, learned Additional Standing
Counsel for the State, on the contrary, submitted that,
due process of the Juvenile Justice Act has been followed
and the child has been given to the custody of Child Care
Center. The learned trial Court has rightly appreciated
the fact scenario of the present case. Taking into
consideration the conduct of the accused persons and the
safety of the girl child, the learned trial Court has rightly
rejected the application of the petitioners.
13. I have taken into consideration the entire facts
scenario of the case and law operating in the field. This
Court is of the opinion that, the arguments advanced by
Mr. Parhi, learned counsel deserves merit. So as to
protect the right of the girl child, who is an infant and the
breast-feeding baby, takes supremacy over all other
incidental issues pertaining to the case. It is apt to rely on
the judgment of the Karnataka High Court in this context.
In Husna Banu v. State of Karnataka [2021 SCC
OnLine Kar 15717], the Karnataka High Court has held
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that breastfeeding is an inalienable right of lactating
mother, protected as a facet of the right to life under
Article 21 of the Constitution. It has held as under:
"In the light of domestic law and the international law
as briefly discussed above, breastfeeding needs to be
recognized as an inalienable right of lactating mother;
similarly, the right of the suckling infant for being
breastfed too, has to be assimilated with mother's
right; arguably, it is a case of concurrent rights; this
important attribute of motherhood, is protected under
the umbrella of Fundamental Rights guaranteed under
Article 21 of the Constitution of India; it is unfortunate
that this pretty child for no fault remained un-
breastfed, its lactating mother having had no access
to it till now; in a civilized society such things should
never happen," .
Further, Section 3(ix) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 also recognizes the above
principle of paramount interest of the child, which
mandated as under:
"All decisions regarding the child shall be based on
the primary consideration, that they are in the best
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interest of the child and to help the child to develop
full potential".
In one of the similar cases the Punjab & Haryana High
Court emphasized the biological mother's indefeasible
right to ask for interim relief in the form of interim
restoration of custody of the minor boy so that the
suckling infant will get the befitting nourishment needed
for his physiological, emotional, and, psychological growth.
Ref: Kamlesh Rani v. State of Punjab and Ors (2022).
14. This Court is of the view that the right of the child
precedes over the guilt of the parents. The inalienable
rights of the infant child supersedes all the attending
adverse circumstances alleged against the biological
parents of the baby. Notwithstanding the pendency of the
criminal proceeding, the petitioners are entitled to claim of
custody of the infant being biological parents under the
"tender years doctrine". Custody of the infant child often
tends favour the mother. The endless affection of the
mother for her child develops right from the womb, her
ability to care and love for the child should not be
subjected to probe. An incorrect decision out of societal
stigma shall not create of shadow of doubt about mother's
affection for her child. The circumstances under which the
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infant female child got engulfed in the controversy led to
the shifting her custody from her mother assumes
relevancy to be adverted to, at this stage. Deep rooted
social malady to have a tendency of preference of a male
child over a female child is the real cause of dispute. The
facts of this case bring to light the deeply entrance societal
biases that prioritise male child over female child often
driven by patriarchal and cultural practices that favours
male lineage for inheritance, ritual and property right. The
alleged action of the petitioners abandoning their biological
daughter in favour of a male child reflects this regressive
mindset. However, the Courts must exercise caution in
allowing such societal prejudices to overshadow the
fundamental right and welfare of the child.
While the circumstances surrounding the
abandonment of the female child are grave, it is equally
important to recognize the maternal instinct and the
natural bond between a mother and her child.
The Courts in the catena of judgments have
consistently held that the welfare of the child is
paramount importance and takes precedence over all other
considerations including allegations of wrong doings
against the parents. The "tender years doctrine" mandates
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the custody of a young child especially an infant should be
ordinarily be awarded to the biological mother as she is
better positioned to provide the care, nurturing and
emotional support necessary for the child's holistic
development.
At this stage, the Court cannot overlook the welfare
and best interests of the infant girl child which must
supersede all societal prejudices and parental guilt.
15. Having said that, this Court is also alive to the fact
that the safety and well-being of the child needs to be
periodically monitored, hence the following directives are
necessitated.
Regular inspections shall be conducted by members of
the Child Welfare Committee to ensure the safety and
protection of the child.
Continuous evaluations of the child's physical health
and general well-being by the Child Welfare Committee
shall be done.
Petitioners shall cooperate with the CWC and comply
the conditions imposed by the Child Welfare
Committee.
CWC may facilitate therapy and provide support to
petitioners parents as it falls within its mandate to
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ensure the welfare of the child and address the
underlying issues that may impact child's upbringing.
Assessment of parental behaviour towards the child,
taking into consideration their previous conduct of
abandonment and neglect may be kept in mind to
impose necessary condition.
It is open for the CWC to move before the trial Court
to recall order of the custody of the child in the event the
welfare and protection of the child is found to be
compromised at any point of time.
16. The opposite party Nos.7, 8 & 9 are directed to
restore the custody of the girl child to the petitioners who
are the biological parents within three days subject to any
conditions as enumerated in the preceding paragraph in
addition to any other condition deemed fit and proper in
the facts and circumstances of the case.
17. Accordingly, the CRLMC is allowed.
......................
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
The 29th January, 2025/Subhasis Mohanty, Personal Assistant
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 30-Jan-2025 19:30:26
