Odisha HC Directs Mother to Return to US With 5-Year-Old Son, Leaving Custody to US Court

The petitioner and opposite party no. 2 married in India and later settled in the United States, where their son was born in 2021. Both parents held U.S. permanent residency.

After their relationship broke down, they obtained a mutual-consent divorce from the Family Court, Bhubaneswar, on 16 January 2025; the decree placed the child in the mother’s custody and gave the father visitation rights.

The father then sought registration of the Indian custody determination in the Circuit Court for Frederick County, Maryland. After the mother returned to India with the child, that court issued an emergency order granting the father sole custody. He filed this habeas corpus petition, alleging that the child’s custody with the mother was unlawful.

The High Court facilitated the father’s visitation during the proceedings and noted that the child had not shown adverse emotion towards him and that the mother had allowed the visits.

The High Court may exercise its extraordinary jurisdiction under Article 226, informed by its parens patriae role, to consider both the production and custody of a minor; the petition is not rendered unmaintainable merely because the child is with a parent (Yashita Sahu v. State of Rajasthan, as quoted at pp. 9–10, para. 9; Rohith Thammana Gouda v. State of Karnataka, p. 10, para. 10).

The child’s welfare is paramount, and custody decisions must be based on the particular circumstances rather than a fixed formula.

Where a foreign court is seized of the custody matter, comity should ordinarily be respected unless doing so would cause harm to the child or there are other special and compelling reasons; the child’s close connection with the foreign jurisdiction is also relevant (Surya Vadanan v. State of Tamil Nadu, quoted at pp. 13–16, paras. 15–16).

The Court also noted that custody orders are generally temporary and that the mother could seek relief before the foreign court.

The Court rejected the maintainability objection, applying the settled principle that habeas corpus jurisdiction may be invoked in a child-custody matter and must be exercised with the child’s welfare as the central consideration.

In assessing the appropriate course, it noted that the parents had lived and worked in the United States as permanent residents, the child was born there and travelled to India on a U.S. passport, and the Frederick County court was already seized of the custody dispute.

The foreign order was ex parte and custody remained open for further determination; the mother could present her case before that court. In the absence of a demonstrated circumstance showing that return would harm the child, the Court considered it appropriate to respect the foreign court’s role and leave the final custody question to it.

It directed the mother to travel with the child to the United States within three months, with the father bearing their travel expenses. The mother was directed to cooperate in renewing the child’s passport, if required. The father was also directed to arrange an apartment within the foreign court’s jurisdiction and initially bear the rent and other expenses, as well as the child’s school expenses, pending the foreign court’s final custody order.