NENELLE BERONILLA DAYANDAYAN vs MRUTUNJAYA KAR
- Court
- Odisha High Court
WPCRL/16/2026
ODHC010131582026
2026:OHC:289-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 16 of 2026
CNR No. ODHC010131582026
Ms. Nenelle Beronilla Dayandayan Petitioner
….
-Versus-
Mrutunjaya Kar and others …. Opposite Parties
Advocates appeared in this case:
For Petitioner : Mr. Rajat Kumar Panda,
Mr. Pravasha Pujaree Parida,
Ms. Kajal Dalal,
Ms. Adyasha Das,
Mr. Dhananjaya Panda, Advocates
For Opposite Parties-State : Ms. Aishwarya Dash,
Additional Standing Counsel
For Opposite Party
Nos.1 to 3 : Mr. Gautam Mukherji, Senior
Advocate along with
Mr. Sreejit Mohanty,
Mr. Supralik Acharya,
Mr. Sandipan Mohanty,
Mr. Sanjivan Mohanty, Advocates
CORAM:
HON’ BLE THE CHIEF JUSTICE
AND
MR. JUSTICE CHITTARANJAN DASH
HON’BLE
J U D G M E N T
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th
Date of Hearing : 28 September, 2026
th
Date of Judgment : 10 November, 2026
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HARISH TANDON, CJ.
1.
The instant proceeding is at the behest of the mother of a minor girl
for issuance of a writ of habeas corpus directing the production of the
minor girl before this Court but also her custody in her favour.
WPCRL No. 16 of 2026 Page 1 of 15
2.
Admittedly, the petitioner is a Philippine citizen and presently
residing and working as kindergarten teacher in Hanoi, Vietnam. She
developed a relationship with the opposite party No.1 and continued in
such a live-in relationship for a pretty long time and of the said
th
relationship, the said minor girl was born on 26 November, 2023 in the
city of Bengaluru, in the State of Karnataka, India. The birth certificate
issued by the competent authority not only reflects the name of the
opposite party No.1 as father, but also the petitioner as biological mother.
The relationship subsequently got strained but the said minor girl
remained in India as a citizen of this country and it is not disputed that
the application for issuance of a passport in her favour was also applied,
st
which was eventually granted on 1 January, 2026.
3. The petitioner filed the instant writ petition in the nature of habeas
corpus alleging that she is not allowed to meet the minor girl, even on
video calls and when she gets an opportunity to see the child on video
calls with the help and assistance of the neighbours, she found that she is
not being taken care of properly by the parents of the opposite party
No.1. She alleged that the foundation leading to a strained relationship
was founded upon a misrepresentation by the opposite party No.1, who
suppressed his earlier relationship and a child therefrom.
WPCRL No. 16 of 2026 Page 2 of 15
4.
She further averred in the instant writ petition that after giving
birth to the child, she has discharged all her duties and responsibilities as
a biological mother by providing daily cares including breastfeeding,
nutrition, hygiene and bathing, medical care and vaccination. However,
since the Visa granted to the petitioner was not extended rather rejected,
she returned back to the country of her origin and, in the meantime, it was
noticed that the opposite party No.1 has put the minor child into the
custody of the grandparents, who later on found not to have taken care of
the said child in proper manner. It is further alleged that the opposite
party No.1 frequently travels to Singapore and other countries and he is
in fact at Bengaluru when the child is kept in the custody of her
grandparents at Jajpur within the State.
5. The opposite party No.1 refuted the stand of the petitioner in the
counter affidavit so filed by contending that since he is employed with
Lumen Technologies Singapore as a Principal Technology Architect, the
Cyber-security APAC, he frequently visits his parental house and takes
care of the child. It is further averred that the petitioner was well aware
that the child is taken care of by the grandparents and, in fact, it was
agreed by executing an agreement that the custody would remain with the
opposite party No.1.
WPCRL No. 16 of 2026 Page 3 of 15
6.
A specific stand is taken that the child is being well taken care of
and, in fact, is going to the kindergarten school and all cares and
precautions, which are required, are being ensured and, therefore, even if
the petitioner is a biological mother, welfare of the child does not warrant
the custody to be handed over to the petitioner. It is further stated in the
said counter affidavit that the petitioner had children from the earlier
marriage and those children are residing in the Philippines, whereas the
petitioner is working in Vietnam on a work Visa and, therefore, being
employed therein and in absence of any other person to take care of the
said child during her professional engagement, it would not be conducive
for the child to remain with her.
7. The opposite party No.1 relied upon the Whatsapp chats in support
of the contention that the petitioner herself agreed the child to remain in
the custody of the grandparents, as they are taking care of her in the best
manner as expected from the petitioner. However, the petitioner in the
rejoinder to the counter affidavit did not deny the custody agreement
having entered into between the parties, but took a defence that the same
was signed under coercion.
8. On the conspectus of the facts so unfurled, a preliminary point was
taken on the maintainability of the writ in the nature of habeas corpus,
more particularly, when the custody cannot be said to be illegal and/or
WPCRL No. 16 of 2026 Page 4 of 15
unlawful. The said point in our opinion does not invite a deep scrutiny as
the judgment rendered by the Courts, including the Apex Court, have
unequivocally held that the writ in the nature of habeas corpus for
custody of the child from the custody of the parents is maintainable.
9. The support can be lent to a judgment of the Apex Court in Yashita
Sahu v. State of Rajasthan and others (Criminal Appeal No.127 of 2020
th
decided on 20 January, 2020) where the Apex Court held that there is no
fetter put on the Court to invoke its extraordinary writ jurisdiction for the
best interest of a child in the following:
9. It is too late in the day to urge that a writ of habeas corpus
“
is not maintainable if the child is in the custody of another
parent. The law in this regard has developed a lot over a
period of time but now it is a settled position that the court can
invoke its extraordinary writ jurisdiction for the best interest
of the child. This has been done in Elizabeth Dinshaw vs.
Arvand M. Dinshaw & Ors. (1987) 1 SCC 42 , Nithya Anand
Raghavan vs. State (NCT of Delhi) & Anr (2017) 8 SCC 454
and Lahari Sakhamuri v. Sobhan Kodali (2019) 7 SCC 311
among others. In all these cases, the writ petitions were
entertained. Therefore, we reject the contention of the
appellant wife that the writ petition before the High Court of
Rajasthan was not maintainable.
10. We need not refer to all decisions in this regard but it
would be apposite to refer to the following observations from
the judgment in Nithya Anand Raghavan (supra):-
WPCRL No. 16 of 2026 Page 5 of 15
“46. The High Court while dealing with the petition for
issuance of a writ of habeas corpus concerning a minor
child, in a given case, may direct return of the child or
decline to change the custody of the child keeping in mind
all the attending facts and circumstances including the
settled legal position referred to above. Once again, we
may hasten to add that the decision of the court, in each
case, must depend on the totality of the facts and
circumstances of the case brought before it whilst
considering the welfare of the child which is of paramount
consideration. The order of the foreign court must yield to
the welfare of the child. Further, the remedy of writ of
habeas corpus cannot be used for mere enforcement of the
directions given by the foreign court against a person
within its jurisdiction and convert that jurisdiction into
that of an executing court. Indubitably, the writ petitioner
can take recourse to such other remedy as may be
permissible in law for enforcement of the order passed by
the foreign court or to resort to any other proceedings as
may be permissible in law before the Indian court for the
custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High
Court must examine at the threshold whether the minor is
in lawful or unlawful custody of another person (private
respondent named in the writ petition).”
11. Further, in the case of Kanika Goel v. State of Delhi
(2018) 9 SCC 578 , it was held as follows:
WPCRL No. 16 of 2026 Page 6 of 15
34. As expounded in the recent decisions of this Court,
“
the issue ought not to be decided on the basis of rights of
the parties claiming custody of the minor child but the
focus should constantly remain on whether the factum of
best interest of the minor child is to return to the native
country or otherwise. The fact that the minor child will
have better prospects upon return to his/her native
country, may be a relevant aspect in a substantive
proceedings for grant of custody of the minor child but not
decisive to examine the threshold issues in a habeas
corpus petition. For the purpose of habeas corpus petition,
the Court ought to focus on the obtaining circumstances of
the minor child having been removed from the native
country and taken to a place to encounter alien
environment, language, custom, etc. interfering with
his/her overall growth and grooming and whether
continuance there will be harmful.””
10. However, in the case of Rajeswari Chandrasekar Ganesh v. The
State of Tamil Nadu and Others , (Writ Petition (Criminal) No.402 of
th
2021, decided on 14 July, 2022) the Apex Court, while upholding the
issue relating to maintainability of the writ of habeas corpus, succinctly
held that the said jurisdiction is inhered into the Court distinct from the
statutory jurisdiction conferred by any particular provision of the special
statute in the following:
91 . Thus, it is well established that in issuing the writ of
“
habeas corpus in the case of minors, the jurisdiction which the
WPCRL No. 16 of 2026 Page 7 of 15
Court exercises is an inherent jurisdiction as distinct from a
statutory jurisdiction conferred by any particular provision in
any special statute. In other words, the employment of the writ
of habeas corpus in child custody cases is not pursuant to, but
independent of any statute. The jurisdiction exercised by the
court rests in such cases on its inherent equitable powers and
exerts the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and scope of
the inquiry and the result sought to be accomplished call for
the exercise of the jurisdiction of a court of equity. The
primary object of a habeas corpus petition, as applied to
minor children, is to determine in whose custody the best
interests of the child will probably be advanced. In a habeas
corpus proceeding brought by one parent against the other for
the custody of their child, the Court has before it the question
of the rights of the parties as between themselves, and also has
before it, if presented by the pleadings and the evidence, the
question of the interest which the State, as parens patriae, has
in promoting the best interests of the child. ”
11. The aforesaid proposition of law is also laid down by the Apex
Court in the case of Vivek Kumar Chaturvedi and another v. State of
U.P. and others , reported in 2025 INSC 159 in the following:
7 . It has to be specifically noticed that in Tejaswini Gaud v.
“
Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, this Court
had permitted the invocation of the extraordinary remedy
seeking custody of the child under Article 226 of the
Constitution of India since the custody was sought by the
WPCRL No. 16 of 2026 Page 8 of 15
father, the natural guardian of the minor child, from the sister
and brother of the mother, who did not have any legal right to
claim the custody of the child. Gautam Kumar Das v. State
(NCT of Delhi), (2024) 10 SCC 588 relied on Tejaswini Gaud
v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 to enable
the natural guardian, the father, custody of a minor child, who
was with the maternal aunts; in a petition under Article 226 of
the Constitution of India. Quoting Nirmala v. Kulwant Singh,
2024 INSC 370 it was also held that there can be no hard-and-
fast rule insofar as the maintainability of a habeas corpus
petition relating to custody of minor children; which would
depend on the facts and circumstances of each case.
”
12. The law enunciated in the above report categorically held that there
habeas corpus
is no factor put into the Court to issue a writ of for custody
of a minor child as the Court enjoins the inherent jurisdiction and not
tramelled with any special jurisdiction conferred under the provisions of
the special statute.
13. Apart from the exercise of inherent jurisdiction inheres into the
writ Court, the parens patriae jurisdiction is also ingrained in it which
ordains consideration, which would be in the best interest of a minor
child. All the judgments relied upon the parties have uniformly held that
the Court shall not be swayed by the fact that one of the parents being the
natural guardian should be given custody but the paramount
consideration is the welfare of the child.
WPCRL No. 16 of 2026 Page 9 of 15
14.
In the above quoted judgments, the Apex Court has applied the
comity of the Courts in the special facts and circumstances where the
foreign Courts have assumed the jurisdiction and in seisin of the custody
matter, the directions have been passed but despite the same, the best
interest of the child should be borne in mind and, in the event, the Court
finds that it would harm the child or not in the welfare of the said child,
there is no inhibition created into the Court in declining to grant the
custody.
15. What would be the best interest of the child cannot be put into a
straightjacket formula or as a Euclidean theorem as it largely depends
upon the facts and circumstances of each case.
16. In the case of Vivek Singh v. Romani Singh , reported in (2017) 3
SCC 231 , the Apex Court held that while considering the best interest of
the child, the consideration must be taken on an optimal growth and the
development of a child primacy over other considerations. The best
conducive environment which would hold the potential and the future
development should also be one of the relevant factors in the following:
12. We understand that the aforesaid principle is aimed at
“
serving twin objectives. In the first instance, it is to ensure that
the child grows and develops in the best environment. The best
interest of the child has been placed at the vanguard of
WPCRL No. 16 of 2026 Page 10 of 15
family/custody disputes according the optimal growth and
development of the child primacy over other considerations.
The child is often left to grapple with the breakdown of an
adult institution. While the parents aim to ensure that the child
is least affected by the outcome, the inevitability of the
uncertainty that follows regarding the child's growth lingers
on till the new routine sinks in. The effect of separation of
spouses, on children, psychologically, emotionally and even to
some extent physically, spans from negligible to serious, which
could be insignificant to noticeably critical. It could also have
effects that are more immediate and transitory to long lasting
thereby having a significantly negative repercussion in the
advancement of the child. While these effects do not apply to
every child of a separated or divorced couple, nor has any
child experienced all these effects, the deleterious risks of
maladjustment remains the objective of the parents to evade
and the court's intent to circumvent. This right of the child is
also based on individual dignity.
13. Second justification behind the “welfare” principle is the
public interest that stand served with the optimal growth of the
children. It is well recognised that children are the supreme
asset of the nation. Rightful place of the child in the sizeable
fabric has been recognised in many international covenants,
which are adopted in this country as well. Child-centric
human rights jurisprudence that has been evolved over a
period of time is founded on the principle that public good
demands proper growth of the child, who are the future of the
nation. It has been emphasised by this Court also, time and
WPCRL No. 16 of 2026 Page 11 of 15
again, following observations in Bandhua Mukti Morcha v.
Union of India (1997) 10 SCC 549 : (SCC p. 553, para 4)
“4. The child of today cannot develop to be a responsible
and productive member of tomorrow's society unless an
environment which is conducive to his social and physical
health is assured to him. Every nation, developed or
developing, links its future with the status of the child.
Childhood holds the potential and also sets the limit to the
future development of the society. Children are the
greatest gift to humanity. Mankind has the best hold of
itself. The parents themselves live for them. They embody
the joy of life in them and in the innocence relieving the
fatigue and drudgery in their struggle of daily life. Parents
regain peace and happiness in the company of the
children. The children signify eternal optimism in the
human being and always provide the potential for human
development. If the children are better equipped with a
broader human output, the society will feel happy with
them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood —
socially, economically, physically and mentally — the
nation gets deprived of the potential human resources for
social progress, economic empowerment and peace and
order, the social stability and good citizenry. The
Founding Fathers of the Constitution, therefore, have
emphasised the importance of the role of the child and the
need of its best devel
opment.”
WPCRL No. 16 of 2026 Page 12 of 15
17.
It is, thus, no gain saying that the welfare principles are not
restricted solely on the physical comfort and/or material advantages but
founded upon a variety of factors, viz., general, psychological, spiritual
and emotional welfare and above all, what would be the best for a healthy
growth, development and education of the child so that she may be
prepared to face the vagaries of life as a matured adult.
18. In the instant case, the child is admittedly under the custody of the
grandparents and being a citizen of the country is taken care of by them.
The opposite party No.1 frequently visits his parental house and takes
care of the child, even the petitioner is interacting with the child through
video calls, though she alleges that at times she is denied of the same.
One of the factors which cannot be overlooked is that the petitioner,
being a citizen of Philippines, is working for her livelihood in Vietnam
and there is no other person who could look after the child while she is
away to discharge her professional duties.
19. Undisputedly, the petitioner has other children from the first
marriage and the children are staying in Philippines and, therefore, it
would not be conducive for the development of the child to stay in
another country when she is admittedly the citizen of this country. In
Indian society, the grandparents also play a very important role in overall
WPCRL No. 16 of 2026 Page 13 of 15
development of a child and it is commonly said that "they love the
grandchild more than their own children".
20. The photographs annexed to the writ petition do not reveal that the
child is facing any psychological problem rather appears to be happy in
all respects. Apart from the same, the child since after few months of
birth is admittedly living with the grandparents who are taking her care
and, therefore, uprooting the child from the settled position could invite a
cascading effect on her. Equally, we cannot overlook that the petitioner
being the mother has every right to visit the child and interact with her
and it is inconceivable that she would be denied of such valuable right.
21.
In the decision rendered by the Apex Court as above, the Court
may decline to exercise the extraordinary jurisdiction by issuing the writ
of habeas corpus, if the welfare of the child warrants so. We, therefore,
do not find it prudent to give the custody of the child to the petitioner
and, hence, the prayer in this regard is refused.
22. However, we direct the opposite parties to permit the petitioner to
interact with the child every day on video call depending upon the daily
routine of the said child and ensuring that neither it causes any discomfort
to her nor would disrupt the sleep order. Further, as and when the
petitioner visits India, she will be permitted to spend time with the child.
WPCRL No. 16 of 2026 Page 14 of 15
During such visit, she may be permitted to spend exclusive time with the
minor daughter and before returning to Vietnam or Philippines, the child
shall be handed over to the grandparents. The opposite party No.1 shall
provide the Air Tickets and stay in the State of Odisha to the petitioner
and shall provide all other facilities necessitated for her smooth visit to
this country.
23. With these observations and directions, the instant writ petition is
disposed of.
I agree.
(Chittaranjan Dash)
Judge
(Harish Tandon)
Chief Justice
Sisira
Jr. Steno
Signature Not Verified
Digitally Signed
Signed by: SISIRA KUMAR BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2026 17:40:17
WPCRL No. 16 of 2026 Page 15 of 15