SWARUP RAJ MOHANTY vs SMARANIKA MOHANTY
- Court
- Odisha High Court
WP(C)/4800/2025
ODHC010105672025
2026:OHC:85
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.4800 of 2025
(In the matter of an application under
Articles 226 & 227 of the Constitution of India)
Swarup Raj Mohanty,
S/o Jyoti Prakash Mohanty,
At: Nanpur,
PO/PS: Balichandrapur,
Dist: Jajpur ....... Petitioner
-Versus-
Smaranika Mohanty,
W/o Swarup Raj Mohanty,
At: Arada, PO: Bhotaka,
PS: Kuakhia, Dist: Jajpur
....... Opp. Party
Advocates appeared in this case
For Petitioner : Manoj Bihari Das
Advocate
For Opposite Party : None
----------------------------
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing& Judgment: 01.09.2026
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S.K. Mishra, J .
1.
The present Writ Petition has been preferred by
the Petitioner-husband, being aggrieved by the order dated
19.12.2024 passed in C.P. No.05 of 2024. Vide the said
order his application dated 19.11.2024, filed under Section
7 of the Family Courts Act, read with Section 26 of the
Hindu Marriage Act, 1955, with a prayer to permit him to
have casual custody intermittently as well as permission to
visit the minor daughter, namely, „Divyanshi‟ at her
maternal place, where she is presently residing, stood
rejected.
2. As is revealed from the record, despite sufficient
opportunity having been granted, the Opposite Party-wife
failed to appear in the present proceeding. That apart,
pursuant to the direction of this Court, the Learned Judge,
Family Court, Jajpur, vide letter dated 25.11.2025,
reported that a copy of the order dated 03.09.2025 passed
by this Court was duly served upon the Opposite Party on
19.09.2025. Thereafter also, the Opposite Party remained
absent on 22.12.2025. Consequently, the matter was
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adjourned with a clear indication vide order dated
22.12.2025 that the Writ Petition would be taken up for
hearing and disposal on the adjourned date. Today also,
when the matter is called, the Opposite Party remains
absent.
3. Accordingly, in view of the order dated
22.12.2025, the matter is taken up for hearing and
disposal at the stage of admission.
4. Heard learned Counsel for the Petitioner.
5. Learned Counsel for the Petitioner, apart from
reiterating the grounds urged in the writ petition, files a
memo of citations in support of his submissions, so also to
justify the prayer made in the wit petition. The same is
taken on record.
6. It appears from the record that the Opposite
Party-wife had instituted a proceeding under Section 13(ia)
(ib) of the Hindu Marriage Act, 1955, shortly “HMA, 1955”,
before the learned Judge, Family Court, Jajpur, which was
registered as C.P. No.05 of 2024. In the said proceeding,
the present Petitioner, who is the Opposite Party-husband
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therein, filed an application on 19.11.2024 seeking casual
custody intermittently as well as permission to visit the
minor daughter at her maternal place, where she is
presently residing.
7. In response to the said petition, a written
objection was filed by the Opposite Party-wife opposing to
that
such prayer basically on the grounds the Petitioner is a
chronic drunkard. He used to take liquor and other
intoxicants everyday and under the influence of the liquor,
he used to abuse, assault and beat the Opposite Party-wife.
That apart, there is an apprehension that the Petitioner
may kidnap the child, as he allegedly tried for the same
number of times.
8. Ultimately, the learned Court below rejected the
application dated 19.11.2024 with the following
observations:
“ 6. Admittedly, the respondent is the father of
the minor daughter, but the allegation brought by
the petitioner that he is intensely addicted to liquor
and other intoxicants cannot be ruled out and most
importantly, he did not appear in this Court to
participate in the conciliation sittings for exploration
of the real truth regarding their matrimonial
differences. Conceding the factum of addiction to
intoxicants, it is natural to furnish opinion that in
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case the respondent would be allowed to take
casual custody and to render intermittent visitation
of the minor daughter, she may be deeply
influenced due to fear psychosis which may flow
from her respondent-father and her prospective
career may be adversely affected.
7. Importing from the pleadings of the
petitioner, it is evident that the respondent is a
chronic drunkard and he is intensely addicted
liquor and other intoxicants and he had tendered
excuses/apologizes for not commission of such
abominable practices and the petitioner has
apprehended fear in her mindset to further live
with him. All these objectionable activities of the
respondent-husband must have been imprinted in
the mind of the minor child which may again
explode after seeing her father. The judicial
principle pressed into service is not appearing to be
applicable to the present fact-situation. Therefore,
considering such critical ensuing apprehensions
against the welfare and upbringing the minor child
who is now safely living with her mother, I am not
inclined to allow neither casual custody nor
intermittent visitation of the child to the respondent
and thus the petition stands accordingly rejected.”
9. The Supreme Court in Yashita Sahu Vs. State
of Rajasthan , reported in (2020) 3 SCC 67, held as
follows:
“ 22. A child, especially a child of tender years
requires the love, affection, company, protection of
both parents. This is not only the requirement of the
child but is his/her basic human right. Just
because the parents are at war with each other,
does not mean that the child should be denied the
care, affection, love or protection of any one of the
two parents. A child is not an inanimate object
which can be tossed from one parent to the other.
Every separation, every reunion may have a
traumatic and psychosomatic impact on the child.
Therefore, it is to be ensured that the court weighs
each and every circumstance very carefully before
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deciding how and in what manner the custody of
the child should be shared between both the
parents. Even if the custody is given to one
parent, the other parent must have sufficient
visitation rights to ensure that the child
keeps in touch with the other parent and does
not lose social, physical and psychological
contact with any one of the two parents. It is
only in extreme circumstances that one
parent should be denied contact with the
child. Reasons must be assigned if one parent
is to be denied any visitation rights or contact
with the child. Courts dealing with the
custody matters must while deciding issues of
custody clearly define the nature, manner and
specifics of the visitation rights .
23. The concept of visitation rights is not fully
developed in India. Most courts while granting
custody to one spouse do not pass any orders
granting visitation rights to the other spouse. As
observed earlier, a child has a human right to have
the love and affection of both the parents and
courts must pass orders ensuring that the child is
not totally deprived of the love, affection and
company of one of her/his parents.
24. Normally, if the parents are living in the same
town or area, the spouse who has not been granted
custody is given visitation rights over weekends
only.In case the spouses are living at a distance
from each other, it may not be feasible or in the
interest of the child to create impediments in the
education of the child by frequent breaks and, in
such cases the visitation rights must be given over
long weekends, breaks and holidays. In cases like
the present one, where the parents are in two
different continents, effort should be made to give
maximum visitation rights to the parent who is
denied custody.”
(Emphasis supplied)
10. This Court in Sanjay Sharma Vrs. Dolly @
Sakhi Sharma and another , reported in 2025 SCC
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OnLine Ori. 3736, as well as in Ayeesurya Mishra Vrs.
Lohit Kumar Dash ; W.P.(C) No.22651 of 2024, following
the case of Yashita Sahu (supra) held that father has a
visitation, when the minor child is in custody of the mother.
11. In a recent judgment of this Court in Saurav
Raiguru Vrs. Ananya Mishra , reported in 2026 SCC
Online Ori. 6565, relying on Yashita Sahu (Supra), it was
held as follows:
13. Law is well settled that, in matters
“
involving custody or visitation of a child, the welfare
of the child is of the paramount consideration. A
child of tender age is entitled to the love, care and
companionship of both the parents. While custody
may rest with one parent, the other parent
must ordinarily be given sufficient access,
unless exceptional circumstances justify
otherwise
.”
15. In custody/guardianship matters, the
“
Courts have to consider the welfare of the
minor child, which is the paramount
consideration and to ensure and safeguard
family system in the country , which is fast
eroding and to ensure that there is overall
development of the minor child and there is
proper environment and upbringing of the child and
therefore, the best interests of the child are taken
care.”
(Emphasis supplied)
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12. Further, in Manoj Dhankar Vrs. Neeharika
and others , reported in 2025 (II) CLR (SC) 1042, the
Supreme Court, considered the request of the father for
interaction with his child through video conferencing to be
reasonable, observing that such an arrangement balances
the child's existing living situation with the need to ensure
that the father continues to remain a part of the child's life.
Accordingly, the father was permitted to interact with his
son through video conferencing.
13. In the present case, the learned Court below
appears to have proceeded significantly on the allegations
made by the Opposite Party-wife regarding the alleged
addiction of the Petitioner-husband to liquor and other
intoxicants and the apprehension expressed by her
regarding the psychological impact of his interaction upon
the minor child. However, there does not appear to be any
material on record, apart from the allegations contained in
the objection, to substantiate such apprehension to an
extent warranting complete denial of visitation and
interaction.
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14. At the same time, having regard to the nature of
the allegations leveled against the Petitioner-father, this
Court is of the considered view that the welfare and safety
of the minor child can appropriately be protected by
regulating and supervising the visitation. Such an
arrangement would also balance the welfare of the child
with her right to maintain contact with her father.
15. In view of the reasons and the settled position of
law, detailed above, this Court is of the view that the
learned Court below was not justified in completely
rejecting the prayer of the Petitioner-husband for visitation
and interaction with the minor child solely on the basis of
the allegations regarding his alleged addiction to liquor and
other intoxicants, particularly in the absence of sufficient
material on record substantiating the apprehension of any
adverse psychological impact upon the child. Thus the
impugned order dated 19.12.2024 passed by the learned
Judge, Family Court, Jajpur in C.P. No.05 of 2024 deserves
interference.
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16. Accordingly, the impugned order dated
19.12.2024 passed in C.P. No.05 of 2024 is set aside.
17. The prayer of the Petitioner-father for visitation
and interaction with the minor female child, namely,
“Divyanshi”, is allowed subject to the following terms and
conditions:
I . Since there is an allegation of addiction of
the Petitioner-father to liquor and other
intoxicants, it would be advisable to have a
supervised visitation in the house of the Opposite
Party-wife, who is at present residing at village
Arada in the District of Jajpur.
II . Since the minor daughter is now staying with
her mother in Village: Arada, P.O: Bhotaka P.S:
Kuakhia, Dist: Jajpur, for smooth visitation and
interaction of the Petitioner-father with the child
the Inspector-In-charge, Kuakhia
“Divyanshi”,
Police Station, Kuakhia, shall depute a constable
to the house of the Opposite Party-wife on the
dates of visitation.
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III. As presence of a police personnel in the
house of the Opposite-Party wife may have
psychological impact on the minor child, the
police personnel shall remain present on civilian
dress on each date of visitation, instead of his
usual police uniform.
IV. Such visitation/interaction shall be twice in
every calendar month.
V. Since the girl child would be around 8 years
old and frequent visitation in normal working
days may affect her studies, the date of visitation
nd th
would be normally on the 2 and 4 Sunday of
every month at 11 A.M.
st
VI. The 1 date of visitation is fixed to
20.09.2026 at 11 A.M. The subsequent dates
and time of visitation shall be decided by the
parties mutually as per their convenience, on the
days, as observed above.
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VII. Duration of such visitation/interaction
normally should be about two hours, i.e., from
11.00 A.M.to 1.00 P.M.
VIII. Apart from visitation, the Petitioner-father is
permitted to meet the child namely, „Divyanshi‟
on her birthday each year and give her gifts, if he
so intends.
IX. That apart, the Petitioner-husband is
permitted to interact with “Divyanshi” through
WhatsApp video calling or any other suitable
st
mode of Video Conferencing platform on every 1
rd
and 3 Sunday, so also other holidays for about
one hour, i.e., from 6.00 P.M. to 7.00 P.M.
X . For the purpose of WhatsApp video calling, if
so required by the Opposite-Party-wife, the
Petitioner shall provide a new android mobile
phone, which can be used for the purpose of
facilitating WhatsApp video calling/interacting
with the minor child namely, “Divyanshi”.
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XI. The Petitioner shall not create any
unpleasant situation at the time of exercising his
visitation right so also during his interaction with
“Divyanshi”, which are not at all conducive to the
interest of the child, failing which he shall be
debarred from spending time so also interacting
with the child namely, “Divyanshi” through Video
Conferencing.
XII. Similarly, the Opposite Party-wife shall also
cooperate with the Petitioner with regard to
visitation and interaction right accorded by this
Court, as detailed above, and not to create any
unpleasant situation at the time of exercising
such rights by the Petitioner at her home, so also
during his interaction with the child “Divyanshi”
through WhatsApp Video Call.
18. Accordingly, the Writ Petition stands allowed and
disposed of in the above terms. There shall be no order as
to costs.
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19. Office is directed to communicate a copy of this
judgment urgently through E-mail as well as through speed
post to the Inspector-In-charge, Kuakhia Police Station,
Kuakhia, District: Jajpur for his information and necessary
action.
20. Urgent certified copy of this judgment be granted
on proper application.
…….….……………………
S.K. MISHRA, J.
Orissa High Court, Cuttack
st
The 1 September, 2026/Prasant
Signature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Sep-2026 10:31:57
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