Child Custody Disputes Shouldn't Be Decided By Writ Courts Unless Custody Is Illegally Retained: Orissa High Court
The Orissa High Court has held that the Writ Courts should not decide child custody battles through habeas corpus petitions unless it is found that the custody of child is retained in an illegal/unlawful manner.
It further ruled that if question of custody entails complexities or requires detailed inquiry, it is incumbent upon the writ court to remit the case to competent Civil Court for proper adjudication.
Delineating the boundaries of writ jurisdiction in child custody matters, the Division Bench of Chief Justice Harish Tandon and Justice Murahari Sri Raman observed–
“The moment the custody does not appear to be illegal and/or unlawful and the question which begging an answer is, whether the welfare of the child lies in uprooting him/her from the known custody to the custody of another person, it would be proper for the Court to relegate the parties to approach the Civil Courts.”
Facts succinctly put, the wife of the petitioner died prematurely leaving behind a minor child, who is five years old as on the date. As per the petitioner's version, the maternal uncle and aunt [opposite party nos. 5 and 6 respectively] of his child were requested by him to take his care by residing at Chennai. However, both of the maternal relatives brought the child back to Odisha and despite his request, they did not return his custody.
Assailing such act of the said opposite parties, the petitioner approached the Child Welfare Committee (CWC), Balasore, which had ordered physical production of the tender-aged child. Such production order was challenged before the Apex Court, which did not interfere with the impugned order but restrained the CWC from passing any order on custody. Therefore, the petitioner filed this writ petition in the nature of habeas corpus seeking custody of the child.
For cementing the jurisdictional foundation, the petitioner relied upon a catena of precedents from the highest Court. Apart from contending that the High Court possesses jurisdiction to decide custody battles, the petitioner vehemently argued that he, being a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, is entitled to the custody of his minor child. Per contra, the private opposite parties disputed the jurisdiction of the High Court to decide such matter, especially when custody of the child is with them pursuant to the order of a competent forum, i.e. the CWC.
In order to determine as to whether the High Court has jurisdiction to entertain custody battles through habeas corpus petitions, the Bench resorted to examine the precedents listed down in support of such proposition. It discussed the law laid down by the Supreme Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors. (2019) and Gautam Kumar Das v. NCT of Delhi & Ors., 2024 INSC 610.
The Court also referred to the judgment in Vivek Kumar Chaturvedi & Anr. v. State of Uttar Pradesh & Ors., 2025 INSC 159, where the top Court after taking into account the earlier judgments rendered in Tejaswini Gaud (supra) and Nirmala v. Kulwant Singh & Ors., 2024 INSC 370 held that the writ in the nature of habeas corpus may be maintained to grant custody if the custody is found be de hors the law, taking account the facts and circumstances of a given case.
Against the backdrop of such settled legal position, the Court held–
“The entertainability of the writ petition in the nature of habeas corpus cannot be squeezed into a straightjacket formula nor to be decided on the basis of Euclid's Theorem but depends upon the facts of each case; above all, the welfare of the child should be the paramount consideration… Once the complexities is perceived, the writ Court should not usurp the powers of the Civil Court to decide and proper course to be adopted in this regard is to remit the parties to approach the Civil Court either under the Hindu Minority and Guardianship Act, 1956 or under the Guardians and Wards Act, 1890, as the case may be.”
So far as the present case is concerned, the Court was of the view that since the custody of the child was retained by the private opposite parties pursuant to an order of a competent forum/CWC, it cannot be deemed as an illegal or unlawful custody. Therefore, it found no ground to entertain the habeas corpus petition.
Pertinently, in Koushalya Das v. State of Odisha & Ors., 2022 LiveLaw (Ori) 103, the Orissa High Court had declined to issue the writ of habeas corpus in favour of a woman who claimed custody of her minor child from her husband. It had reiterated –
“In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”
Case Title: Shashikanta Majhi v. State of Odisha & Ors.
Case No: WPCRL No. 10 of 2026
Date of Judgment: February 23, 2026
Counsel for the Petitioner: Mr. Jyoti Prakash Patra, Advocate
Counsel for the Opposite Parties: Ms. Aishwarya Dash, Addl. Standing Counsel for the State; Mr. Sukanta Kumar Dalai, Advocate for the Private Opposite Parties
Citation: 2026 LiveLaw (Ori) 21