Deciding a habeas corpus petition filed by the mother, the Division Bench of Chief Justice Harish Tandon and Justice Chittaranjan Dash took into account a host of factors to negate her prayer for custody. The Court observed–

“Undisputedly, the petitioner has other children from the first marriage and the children are staying in Philippines and, therefore, it would not be conducive for the development of the child to stay in another country when she is admittedly the citizen of this country. In Indian society, the grandparents also play a very important role in overall development of a child and it is commonly said that "they love the grandchild more than their own children".”

The petitioner is a citizen of Philippines, who is currently residing and working as kindergarten teacher in Hanoi, Vietnam. She stayed in a live-in-relationship with the Opposite Party No.1 ('the opposite party') for a long time and out of such relationship, a girl was born on November 26, 2023 in Bengaluru.

The relationship between the couple subsequently got strained and the petitioner had to leave India as she was denied extension of visa. The minor daughter stayed in India as an Indian citizen and was granted an Indian passport earlier this year.

This petition was filed by the mother/petitioner seeking grant of her custody. She averred that her daughter has been left under the custody of her paternal grand-parents, who are residing in Jajpur, Odisha. She also alleged that the minor child is not being provided with proper care since the opposite/father is residing in Bengaluru and frequently travels abroad.

At the outset, the Court relied upon a catena of precedents, including the Apex Court's ruling in Vivek Kumar Chaturvedi & Anr. v. State of U.P. & Ors., 2025 LiveLaw (SC) 185, to hold that apart from the exercise of inherent jurisdiction in a habeas corpus petition, the Court is enjoined with the parens patriae jurisdiction, which requires it to decide in the best interest of the child.

“It is, thus, no gain saying that the welfare principles are not restricted solely on the physical comfort and/or material advantages but founded upon a variety of factors, viz., general, psychological, spiritual and emotional welfare and above all, what would be the best for a healthy growth, development and education of the child so that she may be prepared to face the vagaries of life as a matured adult.”

In the present case, the Court noted that the minor child, who is admittedly an Indian citizen, is being taken care of by her grand-parents. Further, the petitioner is a citizen of Philippines, who is presently residing in Vietnam for the purpose of employment. Furthermore, she has other children from earlier relationship, who are residing in Philippines.

In such circumstances, the Court was of the view that it would not be in the best interest of the child to vest her custody with her mother as there would be no one to take care of her when the petitioner remains out for discharging her professional duties. Accordingly, the Court held–

“The photographs annexed to the writ petition do not reveal that the child is facing any psychological problem rather appears to be happy in all respects…However, we direct the opposite parties to permit the petitioner to interact with the child every day on video call depending upon the daily routine of the said child and ensuring that neither it causes any discomfort to her nor would disrupt the sleep order. Further, as and when the petitioner visits India, she will be permitted to spend time with the child.”

Counsel for the Petitioner: Mr. Rajat Kumar Panda, Mr. Pravasha Pujaree Parida, Ms. Kajal Dalal, Ms. Adyasha Das & Mr. Dhananjaya Panda, Advocates

Counsel for the Opposite Parties: Ms. Aishwarya Dash, Addl. Standing Counsel for the State; Mr. Gautam Mukherji, Senior Advocate along with Mr. Sreejit Mohanty, Mr. Supralik Acharya, Mr. Sandipan Mohanty & Mr. Sanjivan Mohanty, Advocates for the private opposite parties