Orissa HC Leaves Girl With Grandparents In India, Denies Vietnam-Based Mother’s Custody Plea And Orders Daily Video Calls

The petitioner, a Philippine citizen working in Vietnam, sought a writ of habeas corpus for the production and custody of her minor daughter, born in Bengaluru on 26 November 2023 from her relationship with opposite party No. 1.

After the petitioner returned to her country of origin when her visa was not extended, the child remained in Odisha with the paternal grandparents. The petitioner alleged inadequate care and restricted contact; opposite party No. 1 maintained that the child was well cared for and relied on an agreement under which custody would remain with him. The petitioner did not deny signing the agreement but alleged coercion.

The Court considered both the preliminary objection to maintainability and the petitioner’s request for custody.

The Court held that the High Court may exercise its inherent jurisdiction under Article 226 to consider a habeas corpus petition concerning a minor, including where the child is with a parent; the inquiry is directed to the child’s best interests, not merely the competing rights of the adults.

The Court also relied on Vivek Kumar Chaturvedi v. State of U.P., 2025 INSC 159, for the proposition that maintainability depends on the facts and circumstances of each case.

The welfare inquiry is not confined to physical or material comfort; it includes the child’s psychological, emotional, spiritual, educational and developmental interests (Vivek Singh v. Romani Singh, (2017) 3 SCC 231, discussed at pp. 10–13, paras. 16–17).

The Court rejected the maintainability objection, applying the settled principle that habeas corpus jurisdiction may be invoked to protect a minor’s welfare even where the child is with a parent or family members.

On custody, it considered that the child had lived with the grandparents since a few months after birth, was attending kindergarten, appeared happy in the photographs, and was cared for by grandparents whom opposite party No. 1 frequently visited.

It also considered that the petitioner worked in Vietnam and had no identified caregiver available while she worked, and that removing the child from her settled circumstances could adversely affect her.

The Court therefore found that transferring custody was not shown to advance the child’s welfare, while recognising the petitioner’s interest in maintaining contact.

It directed that the petitioner be allowed daily video calls, subject to the child’s routine and without disturbing her sleep. When the petitioner visits India, she may spend time with the child, including exclusive time during the visit; the child must be returned to the grandparents before the petitioner leaves for Vietnam or the Philippines.

Opposite party No. 1 must provide the petitioner’s air tickets, accommodation in Odisha and other necessary facilities for the visit.