Orissa HC tells mother to fly her boy, 5, back to the US, deferring to a Maryland custody order
A Division Bench led by Chief Justice Harish Tandon held that a habeas corpus petition can decide the custody of a child, but that comity of courts ordinarily applies once a foreign court has passed a custody order, and directed the mother to return to the US with the boy within three months.
A five-year-old boy, born in Maryland and now living in Odisha with his mother, must go back to the United States within three months. On 10 November 2026 the Orissa High Court allowed his father’s habeas corpus petition. The mother must travel with the child to the country where a court has already given the father sole custody.
Chief Justice Harish Tandon, who wrote the judgment, and Justice Chittaranjan Dash did not settle who should finally have the boy. They held that the Circuit Court for Frederick County, which is seized of the matter, should decide that, and that the mother can put her case before it.
Divorce decree kept the boy with his mother
The couple married in Bhubaneswar on 7 February 2007 and later moved to the US. They bought a house in Frederick, Maryland on 10 March 2020, and their son was born in the US on 7 April 2021.
Both became lawful permanent residents, with Green Cards issued on 22 July 2022. The court drew the inference that they meant to live in the US permanently.
The marriage failed. The wife moved to another residence in Maryland, and the couple came to India and filed for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 before the Family Court, Bhubaneswar, on 19 December 2024.
The Family Court dissolved the marriage on 16 January 2025. The decree kept the boy with his mother and gave the father visitation whenever he wished to meet the child.
The father goes to a Maryland court
The father then moved to register the Indian order before the Circuit Court for Frederick County. A notice of registration of a foreign child custody determination was issued to the wife on 12 May 2025.
She told that court she would not contest registration, but that she was open to reviewing any schedule, including for when the child went to India. A draft co-parenting plan was served on her and she did not agree to it.
She came back to India with the boy. She was then served with an emergency relief order for the child’s return, which also directed that his sole custody remain with the father.
The habeas corpus petition followed that order. It alleged that the boy’s custody with his mother and the maternal family had become unlawful after the Maryland order.
Visits ordered while the objection stayed open
The petition named the State of Odisha, the wife and the boy’s maternal grandparents and aunt as opposite parties. Ms Shivani Luthra Lohia appeared for the father, Mr Budhadev Routray, Senior Advocate, for the wife, and Mr Prafulla Kumar Rath, Senior Advocate, for the maternal relatives.
The opposite parties raised a preliminary objection that a habeas corpus petition was not maintainable. The Bench left that open and, exercising its parens patriae jurisdiction, ordered visits whenever the father came to India.
The court recorded that no untoward incident marked those visits. The boy was always found cheerful with his father, and the court said it appreciated that the mother volunteered to let the father spend time with the boy.
Habeas corpus for custody: the precedents
The first point the court took up was the scope of its power under Article 226 of the Constitution when a writ in the nature of habeas corpus is sought for a child. It began with Yashita Sahu v. State of Rajasthan (2020), which it called the closest on facts.
There, a Norfolk court in the US had passed orders between the couple. The wife left for India with their daughter, and the husband obtained an ex parte order for sole custody. The Rajasthan High Court directed her to return, and the Supreme Court rejected the argument that habeas corpus cannot lie against a parent.
The Supreme Court’s later rulings were read the same way. In Rohith Thammana Gouda v. State of Karnataka (2022), it said the High Court may direct the child’s return or decline to change custody, depending on the facts, keeping parens patriae in mind.
The Bench also cited a Bombay High Court Division Bench in Abhinav Gyan v. State of Maharashtra (2022), which entertained such a petition and directed the child’s return to the US court.
It noted Somprabha Rana v. State of Madhya Pradesh (2024 INSC 664), where the Supreme Court set aside a High Court order giving custody to a father as natural guardian. It sent the parties to proceedings under the Guardians and Wards Act, 1890.
The Bench then turned to its own Division Bench ruling in Shashikanta Majhi v. State of Odisha (WPCRL 10 of 2026, decided on 23 February 2026). That ruling held habeas corpus maintainable for custody as well as production, with welfare first.
It added that where a competent statutory authority already holds the child, the parties should go there. The High Court should not nullify that authority’s order.
From all this the Bench drew its test. Habeas corpus lies for custody as well as production, but the power is not to be used routinely and needs special facts, with the child’s welfare paramount. On foreign orders, it held:
“ordinarily the comity of Courts is to be adhered to” (para 14)
The court added one qualification. Comity gives way if adhering to it would cause greater harm to the minor child.
Comity of courts and the closest concern
The court set out Surya Vadanan v. State of Tamil Nadu (2015) at length. That judgment calls comity of courts a principle of self-restraint, which applies when a foreign court is seized of the custody issue first.
It treats comity and the child’s best interests as two different principles, both to be applied to the facts. It also says the most intimate contact and closest concern doctrines remain alive.
A foreign court with the closest concern for the child, the Supreme Court said there, is better placed to judge the social and cultural setting in which the child has grown up. Comity should be set aside only for special and compelling reasons, more so where the foreign order is interim.
On interim foreign orders, the same judgment says a foreign court is as capable of a prima facie fair adjudication as any domestic court. A final foreign judgment is tested under Section 13 of the Code of Civil Procedure, 1908. The question, it says, is one of legal obligations and not merely of rights.
The Bench added its own gloss. These principles have been applied uniformly where the child is a citizen of another country and the foreign court has taken jurisdiction. Unless some competing circumstance shows harm to the child, the parties should seek their remedy there.
Why the Bench sent the boy back
On the facts, the court noted that both parents are Green Card holders who were in gainful employment in the US. The wife left the US with the boy and now lives within the court’s jurisdiction.
She works for a US company from her parents’ house and has filed income tax returns on income earned in America. The boy travelled to India on a US passport.
The court was told during the hearing that the passport needs renewal. Unless the child can appear before the competent authority, it said, the lapse might affect him later.
The Circuit Court’s order was passed ex parte. The Bench noted that such orders are temporary, and that the wife will have her chance to ventilate every grievance before the court that is seized of the matter:
“Custody Orders are always regarded as temporary one” (para 17)
The Bench said the court in Maryland must decide on the settled principle that welfare is paramount. It did not rule on custody itself.
Order
The writ petition was allowed. The wife must travel to the US with the minor son within three months of the order.
She must cooperate with the husband in renewing the boy’s passport if it has expired, and no hindrance is to be caused. The petitioner must bear the travel costs of the wife and the boy to the place where they last lived.
The husband must also take an apartment on rent within the jurisdiction of the foreign court and bear the rent and other expenses at first. Until the foreign court passes its final custody order, he must get the boy admitted to school and bear that expense. The proceeding was disposed of.