SAMBIT KUMAR vs STATE OF ODISHA
- Court
- Odisha High Court
WPCRL/91/2025
ODHC010487172025
2026:OHC:288-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 91 of 2025
CNR No. ODHC010487172025
Sambit Kumar …. Petitioner
-Versus-
State of Odisha and others …. Opposite Parties
Advocates appeared in this case:
For Petitioner : Ms. Shivani Luthra Lohia,
Mr. Abhas Mohanty &
Ms. Ishita Soni, Advocates
For Opposite Parties : Mr. Sanjay Rath, AGA
(for O.P.1)
Mr. Budhadev Routray, Senior
Advocate with Mr. J. Biswal,
Advocate (for O.P.2)
Mr. Prafulla Kumar Rath, Senior
Advocate with Mr. A. Behera,
Advocate (for O.Ps. 3 to 5)
Ms. A. Dash, Advocate, Special
Officer
CORAM:
HON’ BLE THE CHIEF JUSTICE
AND
HON’BLE MR. JUSTICE CHITTARANJAN DASH
J U D G M E N T
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th
Date of Hearing : 24 August, 2026
th
Date of Judgment : 10 November, 2026
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WPCRL No. 91 of 2025 Page 1 of 18
HARISH TANDON, CJ.
1. A piquant situation has been arisen in the instant writ petition in
the nature of Habeas Corpus filed at the behest of the father of a minor
child against the wife-opposite party no.2 and the maternal grandparents
and aunt on the strength of a Foreign Judgment/ Order directing the
custody to be handed over to the petitioner qua a decree for divorce
granted under Section 13 B of the Hindu Marriage Act, 1955, wherein
the custody of the minor child was directed to remain with opposite
party no.2-wife.
2. The undisputed facts unfurled from the record are adumbrated to
determine the issues/ points raised by the respective contesting parties.
The petitioner and the opposite party no.2 were married according to the
th
Hindu Rituals and Rites on 7 February, 2007 at Bhubaneswar.
Subsequently, they shifted to USA in pursuit of their better future and
after gainful employment thereat jointly purchased a house in Frederick,
th
Maryland, USA on 10 March, 2020. The minor child, a baby boy, is
th
born on 7 April, 2021 in USA, which would be evident from the birth
certificate issued by the competent authority thereat. Subsequently, they
nd
were granted lawful permanent residency (Green Card) on 22 July,
2022 and a logical inference which can be drawn from the aforesaid fact
WPCRL No. 91 of 2025 Page 2 of 18
that they intended to permanently reside in USA. Subsequently, they
developed a matrimonial discord because of the differences in their
opinion and perception, which persisted for a long time, leading to a
conscious decision to separate themselves from each other as the wife,
opposite party no.2 decided to shift to another residence at Maryland.
Since such differences persisted and went beyond the possibility of any
repair, they visited the country of their origin, India and decided to
dissolve the marriage by mutual consent. An application under Section
th
13 B of the Hindu Marriage Act, 1955 was filed on 19 December, 2024
before the Family Court, Bhubaneswar giving rise to registration of C.P.
No. 848 of 2024. The aforesaid petition for dissolution of marriage on
mutual consent was filed under Section 13 B of the said Act, which
nd
ordains a cooling period of six months, the 2 motion was moved after
expiry of the said cooling period and ultimately, the marriage was
th
dissolved by a decree of divorce on 16 January, 2025 with clear
stipulation that the custody of the miner child shall remain with the
wife, the opposite party no.2 and the petitioner was given a visitation
right to meet and interact with the minor child as and when he so
desires. Despite having agreed and accepted the decree of divorce by
mutual consent and custody being ordered to be retained with the
WPCRL No. 91 of 2025 Page 3 of 18
opposite party no.2-wife, the petitioner moved to register the Indian
Order before the Circuit Court for Frederick County, wherein a notice
was issued to the opposite party no.2-wife as “ Notice of Registration of
th
Foreign Child Custody Determination ” on 12 May, 2025. Despite the
service of notice of registration, the opposite party no.2-wife conveyed
her intention not to contest the said proceeding pertaining to
Registration of the Indian Order with the rider that she is open to review
any proposed schedule including when the child goes to India and in the
event of disagreement should proceed to contest. The Draft Co-
Parenting plan was served upon her, which she did not agree and
ultimately she came back to India along with the child. The opposite
party no.2 was served with the order in the form of emergency relieve
order for return of the minor child and his sole custody was directed to
be remained with the petitioner.
3. The instant writ petition in the nature of Habeas Corpus came to
be filed subsequently to the order passed by the Circuit Court for
Frederick County, USA alleging that the custody remains unlawful and
illegal after the said order was passed by the country of foreign origin.
4. On the backdrop of the aforesaid undisputed facts, the writ in the
nature of Habeas Corpus is filed by the petitioner alleging the custody
WPCRL No. 91 of 2025 Page 4 of 18
of the minor child to be unlawful and illegal after the order is passed by
the Foreign Court wherein a preliminary objection was raised as to the
maintainability of the writ petition of such nature. The notice of the writ
petition was issued upon the contesting opposite parties and after the
service is effected, they were represented by their respective counsels
with an intent to defend the said writ petition. Though the plea of demur
remained open to be decided at a later point of time, the Court exercised
the parens patriae jurisdiction and issued orders from time to time as
and when the petitioner visits India to meet and interact with the minor
boy.
5. The intention of the Court for directing the visitation of the
petitioner with the minor boy is reflected in the various orders passed in
the instant proceeding with categorical observation that the boy at times
may act as a catalyst to resuscitate the matrimonial relationship of the
parents. At times, the child may create a bridge between the parents who
always cares for the well-being of their child and keeping the same
paramount may reunite. There is not a single incident recorded during
the interaction except the fringe issues because of the tearing of the
fabric of the matrimonial relationship by a decree of divorce and the
child was always found cheerful with the petitioner.
WPCRL No. 91 of 2025 Page 5 of 18
6. So far as the custody related laws applicable in the country are
concerned, the Courts while considering the said aspect gives primacy
to the welfare of the child. It is no gain saying that the Courts should not
uproot the child from his settled position as it not only casts a negative
impact, but at times may aggravate the psychological issues. We are not
unmindful of the fact that the parents are the best persons for the well-
being of their child and their contribution in upbringing plays a
significant role in becoming the best person in life. The welfare of the
child being a paramount consideration in any custody matter, the Courts
make endeavour to ascertain the same which cannot be squeezed in
straight jacket formula as it depends upon the variety of the facts and
circumstances as the human behavior largely varies. The anatomy of the
human body is complex, but the human behavior is more complicated.
The boy of five years of age is central to the issue of custody between
the warring parents. It is well accepted notion that once the parents are
fallen apart, the child is the worst sufferer and the judicial experience
gained by passage of time has shown that the children are used as pawns
to settle their personal egos, emotions and above all pitted against each
of the parents.
WPCRL No. 91 of 2025 Page 6 of 18
7. At least in the instant matter we must record that the child as of
now has not developed any adverse emotion against the petitioner
during the visitation period and the role of the opposite party no.2-wife
can also be appreciated that she volunteers to allow the petitioner to
visit the minor boy and he spends time with him during his visit to
India.
8. Having considered the aforesaid aspect, the first and foremost
point which we feel to deliberate upon is the scope and the jurisdiction
exercised by the High Court under Article 226 of the Constitution of
India when a writ in the nature of Habeas Corpus is filed.
9. The point of maintainability of writ in the nature of Habeas
Corpus are often taken when the recourse under Article 226 of the
Constitution of India is resorted to and the Courts of the country
including the Supreme Court had occasion to deal with such plea of
demur and expounded the law on such aspect. The same issue was
raised when a writ of a similar nature was filed and Supreme Court had
to take a call on such point in Yashita Sahu v. State of Rajasthan and
others , reported in (2020) 3 SCC 67 . The facts emerged from the said
case is worth to be recapitulated because of the closest parity. In the said
case, the parties were married in India and went back to USA as the
WPCRL No. 91 of 2025 Page 7 of 18
husband was already working thereat. A female baby was born therein
and, therefore, is a citizen of the said country. The relationship between
the husband and wife got strained and the wife applied for an
emergency protection order to the Norfolk Juvenile and Domestic
Relations District Court for protection of her daughter and an ex parte
preliminary protection order was passed against the husband.
Subsequently, the wife instituted a petition in the same Court seeking
sole custody of the minor child and also prayed for monetary support to
her and the daughter. On the basis of an agreement reached between the
parties, an order was passed directing the father to continue paying rent
and utilities at the marital residence and also support the mother in all
respect. The visitation right was also given to the father and the share
parenting order was also passed. The wife left USA with the child and
the husband after coming to know moved a motion for emergency relief
before the said Norfolk Court wherein an ex parte order was passed in
favour of the husband granting sole legal and physical custody of the
child to him. The warrant was also issued against the wife for violating
the order of the said Court and on the strength thereof, the husband filed
a petition for issuance of a writ of Habeas Corpus before the Rajasthan
High Court for production of the minor child. The High Court directed
WPCRL No. 91 of 2025 Page 8 of 18
the wife to return to USA along with the minor daughter and submit to
the jurisdiction of the said Court. The wife challenged the said order
before the Supreme Court and a plea of maintainability of the writ of
Habeas Corpus was raised. The apex Court held that there is no
jurisdictional error in issuing the writ of Habeas Corpus even if the child
is in custody of another parent, as such extra ordinary jurisdiction is
exercised by the writ Courts in the best interest of the child in the
following:
10. 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 v.
Arvand M. Dinshaw [Elizabeth Dinshaw v. Arvand
M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] ,
Nithya Anand Raghavan v. State (NCT of Delhi)
[Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] and
Lahari Sakhamuri v. Sobhan Kodali [Lahari
Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 :
(2019) 3 SCC (Civ) 590] among others. In all these
cases, the writ petitions were entertained. Therefore,
WPCRL No. 91 of 2025 Page 9 of 18
we reject the contention of the appellant wife that the
writ petition before the High Court of Rajasthan was
not maintainable.
”
10. In Rohith Thammana Gouda v. State of Karnataka and others ,
reported in 2022 SCC OnLine SC 937, a writ of Habeas Corpus was
sought for the production of the minor son and his custody to the
petitioner, who is a father, which was rejected by the High Court. The
challenge was made to the Supreme Court wherein the apex Court held
that so far as the question of jurisdiction is concerned, it does not invite
a deep survey on the various authorities as it would suffice to decide the
said issue on the principle laid down in V. Ravi Chandran (2) Union of
India , reported in (2010) 1 SCC 174 that the actual role of the High
Courts in the matter involving claim of custody of the minor, the
principle of parens patriae jurisdiction is to be borne in mind and,
therefore, the writ of Habeas Corpus qua a minor is maintainable and
the High Court may direct the return of the child or decline to change
the custody of the child depending upon the attending facts and
circumstances.
11. In Abhinav Gyan, through his Power of Attorney Holder Mr.
Abhimanyu Singh v. State of Maharashtra, through Police Station
WPCRL No. 91 of 2025 Page 10 of 18
Incharge and Another , reported in 2022 SCC OnLine Bom 2958, the
Division Bench of Bombay High Court taking note of the various
Habeas Corpus
decisions of the Supreme Court entertained the writ
petition and directed the return of the minor child to the jurisdiction of
the US Court.
12. In a subsequent judgment rendered by the Supreme Court in
Somprabha Rana and others v. The State of Madhya Pradeshh and
others , reported in 2024 INSC 664, the apex Court set aside the
judgment of the High Court by which the custody was directed in favour
of the father being a natural guardian and relegated the parties to the
substantial proceedings under the Guardians and Wards Act, 1890 as
such appropriate Court is otherwise equipped to decide the issue of the
child custody and the guardianship.
13. In a decision rendered by the Division Bench of this Court (one of
us is the author) in Shashikanta Majhi v. State of Odisha and others
rd
(WPCRL No. 10 of 2026 decided on 23 February, 2026) it is held in
unequivocal terms that the writ petition in the nature of Habeas Corus is
maintainable not only for production of the minor child, but for the
purpose of the custody, and the same is to be decided on the basis of the
facts involved in each case. The first and foremost endeavour is the
WPCRL No. 91 of 2025 Page 11 of 18
Court should undertake the welfare of the child and in the event the
custody is found with the statutory authority who is otherwise
competent to decide the best interest of the child, the party should be
relegated to the said forum. It would not be proper for the High Court to
exercise the extra ordinary jurisdiction and pass an order nullifying the
order passed by the statutory authority.
14. All the decisions which have been cited by the respective parties
as succinctly narrated hereinabove echoed in unison that the writ in the
nature of Habeas Corpus is maintainable not only for production of the
minor child, but also for the custody as the Court enjoins the parens
patriae jurisdiction. However the exercise of such jurisdiction should
not be done in routine manner, but on the basis of the special facts or the
circumstances involved therein. What should weigh to the Court is the
welfare of the child as a paramount consideration. In the event any
Foreign Court is in seisin of the matter and the orders are passed on the
custody of the child, ordinarily the comity of Courts is to be adhered to
unless it causes a greater harm to the minor child.
15. The concept of close contact or close concern touching upon the
well-being and welfare of the child is also one of the factors to be borne
in mind emanating from the judgment of the Apex Court in Surya
WPCRL No. 91 of 2025 Page 12 of 18
Vadanan v. State of Tamil Nadu and others , reported in (2015) 5 SCC
450 in the following:
“46. The principle of the comity of courts is
essentially a principle of self-restraint, applicable
when a foreign court is seized of the issue of the
custody of a child prior to the domestic court. There
may be a situation where the foreign court though
seized of the issue does not pass any effective or
substantial order or direction. In that event, if the
domestic court were to pass an effective or
substantial order or direction prior in point of time
then the foreign court ought to exercise self-restraint
and respect the direction or order of the domestic
court (or vice versa), unless there are very good
reasons not to do so.
48. Therefore, we are concerned with two principles
in a case such as the present. They are:
(i) the principle of comity of courts; and
(ii) the principle of the best interests and the welfare
of the child.
These principles have been referred to as
“contrasting principles of law” [Shilpa Aggarwal v.
Aviral Mittal, (2010) 1 SCC 591 : (2010) 1 SCC (Civ)
192] but they are
not “contrasting” in the sense of
one being the opposite of the other but they are
WPCRL No. 91 of 2025 Page 13 of 18
contrasting in the sense of being different principles
that need to be applied in the facts of a given case.
49. What then are some of the key circumstances and
factors to be taken into consideration for reaching
this final goal or final objective? First, it must be
appreciated that the “most intimate contact” doctrine
and the “closest concern” doctrine of Surinder Kaur
Sandhu [Surinder Kaur Sandhu v. Harbax Singh
Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464] are
very much alive and cannot be ignored only because
their application might be uncomfortable in certain
situations. It is not appropriate that a domestic court
having much less intimate contact with a child and
having much less close concern with a child and his
or her parents (as against a foreign court in a given
case) should take upon itself the onerous task of
determining the best interests and welfare of the
child. A foreign court having the most intimate
contact and the closest concern with the child would
be better equipped and perhaps best suited to
appreciate the social and cultural milieu in which the
child has been brought up rather than a domestic
court. This is a factor that must be kept in mind.
50. Second, there is no reason why the principle of
“comity of courts” should be jettisoned, except for
special and compelling reasons. This is more so in a
WPCRL No. 91 of 2025 Page 14 of 18
case where only an interim or an interlocutory order
has been passed by a foreign court (as in the present
case). In McKee [McKee v. McKee, 1951 AC 352 :
(1951) 1 All ER 942 (PC)] which has been referred to
in several decisions of this Court, the Judicial
Committee of the Privy Council was not dealing with
an interim or an interlocutory order but a final
adjudication. The applicable principles are entirely
different in such cases. In this appeal, we are not
concerned with a final adjudication by a foreign
court — the principles for dealing with a foreign
judgment are laid down in Section 13 of the Code of
Civil Pro
cedure. [ “13.When foreign judgment not
conclusive. A foreign judgment shall be conclusive
—
as to any matter thereby directly adjudicated upon
between the same parties or between parties under
whom they or any of them claim litigating under the
same title except — (a) where it has not been
pronounced by a court of competent jurisdiction;(b)
where it has not been given on the merits of the
case;(c) where it appears on the face of the
proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of
India in cases in which such law is applicable;(d)
where the proceedings in which the judgment was
obtained are opposed to natural justice;(e) where it
has been obtained by fraud;(f) where it sustains a
WPCRL No. 91 of 2025 Page 15 of 18
claim founded on a breach of any law in force in
India.”] In passing an interim or an interlocutory
order, a foreign court is as capable of making a
prima facie fair adjudication as any domestic court
and there is no reason to undermine its competence
or capability. If the principle of comity of courts is
accepted, and it has been so accepted by this Court,
we must give due respect even to such orders passed
by a foreign court. The High Court misdirected itself
by looking at the issue as a matter of legal rights of
the parties. Actually, the issue is of the legal
obligations of the parties, in the context of the order
passed by the foreign court.”
16. The principles of the comity of Court has been uniformly applied
in catena of the cases rendered by the apex Court, more particularly,
when the child is a citizen of another country and the orders are passed
bearing in mind that the child should remain in a country of which he is
a citizen being the well suited place and once the foreign Court has
assumed the jurisdiction and passed order except for some competing
circumstances that it would harm the child or cause injury to him, the
parties should explore the remedy before the said Court.
17. Reverting back to the facts of the instant case, admittedly the
parties are Green Card holders, i.e. permanent residency certificate and
WPCRL No. 91 of 2025 Page 16 of 18
were also in gainful employment thereat. The record further reveals that
the wife left USA along with the minor son and started residing within
the jurisdiction of this Court. The wife was working in a USA company
from her parental house within the jurisdiction of the Court and even
filed the Income Tax Returns as the income was generated within the
State of America. The child travelled to this country with the USA
Passport and in course of the hearing it was brought to the notice of this
Court that the same is required to be renewed and unless the child is
permitted to appear before the competent authority it might impact him
in future. Though ex parte order is passed by the Circuit Court for
Frederick County for custody of the child, but it is a well nigh principle
that the Custody Orders are always regarded as temporary one. The wife
seisin
will get an opportunity to approach the said Court, which is in of
the matter and ventilate all the grievance which in our opinion shall be
decided by the said Court on the well settled principles accepted across
the globe that the welfare is a paramount consideration.
18. We, therefore, allow the writ petition filed by the husband
directing the wife to travel USA along with the minor child within three
months from the date of the order. The wife will cooperate the husband
in renewing the passport of the minor son, if the same has expired in the
WPCRL No. 91 of 2025 Page 17 of 18
meantime and no hindrance shall be caused in this regard. The travel
expenditure of the wife and the minor son shall be borne by the
petitioner to return to the place where they were residing lastly. The
husband shall also take on rent an apartment within the jurisdiction of
the Foreign Court, who passed an order of the custody of the minor son
and shall initially bear the rent and other expenses. Pending the final
order of custody to be passed by the Foreign Court, the husband shall
get the minor son admitted in the school and shall also bear the
expenditure.
19. The proceeding is accordingly disposed of.
I agree.
(Chittaranjan Dash)
Judge
(Harish Tandon)
Chief Justice
Arun Mishra
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2026 17:38:34
WPCRL No. 91 of 2025 Page 18 of 18