The Orissa High Court on Monday dismissed a father’s habeas corpus petition seeking custody of his five-year-old son, holding that the child’s present custody with the maternal aunt is not illegal and that such disputes should ordinarily be decided by a civil court.
A Division Bench led by the Chief Justice made it clear that while a writ of habeas corpus is maintainable in child custody matters, it cannot be used to bypass detailed proceedings required under guardianship laws.
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Background of the Case
The case, Shashikanta Majhi v. State of Odisha & Others, arose after the petitioner’s wife died prematurely, leaving behind their minor son. The child has been staying with his maternal aunt and uncle in Odisha.
The father, who works in Chennai, argued that after his wife’s death, he had asked the aunt and uncle to stay with him temporarily to help care for the child. However, he alleged that they later took the child to Odisha without his permission and refused to return him.
Earlier, the matter had reached the Child Welfare Committee (CWC), Balasore. The order for production of the child was challenged up to the Supreme Court, which directed that the child be produced before the CWC but restrained it from deciding custody.
The father then approached the High Court through a writ of habeas corpus, claiming that as the natural guardian under law, he was entitled to immediate custody.
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Petitioner’s Arguments
Counsel for the petitioner relied on Supreme Court rulings including Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, Gautam Kumar Das v. NCT of Delhi, and Vivek Kumar Chaturvedi v. State of Uttar Pradesh. He argued that there is no legal bar preventing a High Court from granting custody in habeas corpus proceedings.
It was contended that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian and any custody with another person amounts to illegal detention.
The lawyer submitted that the High Court had full authority to examine the matter and restore custody to the lawful guardian.
Court’s Observations
The Bench began by explaining the scope of habeas corpus. It said the writ is meant to secure the production of a person who is under illegal or unlawful detention.
“The writ of habeas corpus is an extraordinary remedy,” the Bench observed, adding that it is generally invoked where detention is without authority of law.
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The Court carefully examined the Supreme Court precedents cited by the petitioner. It noted that in earlier cases, custody was held to be illegal where a child was initially handed over temporarily and later not returned.
However, the judges emphasized that such relief depends entirely on the facts of each case.
The Bench clarified that although habeas corpus can be used in child custody disputes, it is not meant to replace detailed proceedings under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.
“What is paramount is the welfare of the child,” the Court said, stressing that complex questions about a child’s welfare are best decided by civil courts after proper inquiry.
Status of Current Custody
A key factor in the Court’s decision was that the child’s custody with the maternal aunt was backed by proceedings before the Child Welfare Committee.
The Bench noted that the Supreme Court had not interfered with the CWC’s direction for production of the child and had acknowledged that the child was in the aunt’s custody.
Since the custody was supported by an order of a competent authority, it could not be termed unlawful.
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The Court observed that “once the custody does not appear to be illegal and/or unlawful,” the High Court should be slow in exercising its extraordinary jurisdiction.
Decision
After reviewing the legal position and the facts, the Division Bench concluded that no grounds were made out for interference.
The writ petition was dismissed.
The Court held that if the father seeks custody, he is free to approach the appropriate civil court under the relevant guardianship laws, where a detailed examination of the child’s welfare can be undertaken.
With this, the habeas corpus petition stood dismissed, and pending applications were also disposed of. No order as to costs was passed.
Case Title: Shashikanta Majhi v. State of Odisha & Others
Case No.: WPCRL No.10 of 2026
Decision Date: 23 February 2026
