Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ORISSA HIGH COURT
Sanjay Kumar Mishra, J.
Sanjay Sharma – Petitioner
versus
Dolly @ Sakhi Sharma and Anr. – Opp. Party
W.P.(C) No.10091 of 2025
Decided on 10.10.2025

Advocates:
Counsel for the Parties:
For the Petitioner:Mrs. Suman Modi, Advocate
For Opp. Party No.1:Mr. Kirtan Dang, Advocate
For Opp. Party No.2: None

IMPORTANT POINT
Custody of child – Court is required to decide issue of visitation on the basis of what is in best interest of child.

Headnote:
Hindu Minority and Guardianship Act, 1956 – Section 6 – Custody of child (Son) – Divorce between parties – Petitioner has kept himself away from remarriage so also custody of both children is at present with their mother, who is married to an elderly person, who is already having three children, refusal of visitation right to natural father by Judge, Family Court, vide impugned order appears to be unjust and contrary to settled position of law – Since visitation right is an important right of either of parents to see children born out of their wedlock and while deciding welfare of child, it is not the view of one spouse alone, which has to be taken into consideration, Court is required to decide issue of visitation on the basis of what is in best interest of child – Impugned order passed by Judge, Family Court, deserves interference – Impugned order set aside and matter remitted back to Judge, Family Court, to pass appropriate order afresh in consultation with parties. (Paras 15, 18 and 19)
Result: Writ Petition allowed.

JUDGMENT

S.K. Mishra, J.—The writ petition has been preferred assailing the order dated 24.03.2025 passed by the learned Judge, Family Court, Cuttack in I.A. No. 117 of 2024 (arising out of C.P. No.543 of 2024), vide which the Petitioner”s prayer for visitation right with his minor son, namely, Shivay Sharma, who is aged about 7 years, stood rejected.

2. The undisputed background of the present lis is that the Petitioner and the Opposite Party No. 1, Dolly @ Sakhi Sharma, got married on 09.07.2011, lived together for around five years, and then separated due to temperamental differences. The Opposite Party No.1 instituted MAT Case No.94 of 2023 under section 13(1)(i- a)&(i-b) of the Hindu Marriage Act, 1955, shortly, “the Act, 1955”, before the learned Judge, Family Court, Bargarh. The said case was decreed ex parte against the Petitioner, dissolving the marriage. Thereafter the Opposite Party No.1 remarried one Ashok Ladha, an elderly person having three children from his first marriage, out of which one got married.

3. It is the case of the Petitioner that the parties had agreed that their daughter “Shanvi Sharma” would remain in the custody of the Opposite Party No.1 and their son “Shivay Sharma” would remain in the exclusive custody of the Petitioner, with mutual visitation right of children for both the parents.

4. On 05.02.2024, after the Petitioner dropped his son at the Cambridge School, Cuttack, the child reportedly fell ill and was taken away by the Opposite Party No.1 along with her second husband, on being intimated by the School authorities. Since then, she has allegedly not allowed the Petitioner to meet or communicate with the child, Shivay Sharma, i.e, the Opposite Party No. 2. Hence, FIR was lodged before the I.I.C., Cantonment Police Station, representation was given to the DCP, Cuttack and 1CC Case No. 35 of 2024 was also instituted by the Petitioner, but with no tangible result.

5. Finding no other way out, the Petitioner filed an application under Section 6 of the Hindu Minority and Guardianship Act, 1956, shortly, “the Act, 1956”, for custody of his son before the learned Judge, Family Court, Cuttack, which was registered as C.P. No.543 of 2024. I.A. No.117 of 2024 was also moved along with the said C.P. for visitation/communication with his son. However, the learned Judge, Family Court, Cuttack rejected the said I.A. citing the absence of suitable neutral venue and apprehension of untoward incidents. The operative portion of the impugned order dated 24.03.2025 passed in I.A. No.117 of 2024 (arising out of C.P. No.543 of 2024), being relevant, is extracted below.

“The petitioner has not mentioned the place of visit and the manner to meet his son. Though the son and daughter both are with the OP No.1 but he is interested only to see his son. The evidence of this case has not yet commenced. There is possibility of untoward incident, if the petitioner will be allowed to visit the child in the present scenario in absence of any convenient place of visit and the manner of communication with his son. Though the child took birth out of the relation between the husband and wife and the child is not only of the OP or the petitioner, but the allegations made by the OP are serious in nature and the welfare and development of the child at this stage is crucial. Thus, taking into account the above facts and circumstances of this case, the petition filed by the petitioner at this stage is not maintainable, as such the same stands rejected.” (Emphasis supplied)

6. Learned Counsel for the Petitioner, drawing attention of this Court to the plaint in C.P. No.543 of 2024 so also the report of the Counsellor dated 21.12.2024, submitted that though it was decided between the Petitioner and the Opposite Party No.1 that the daughter will stay with Opposite Party No.1, whereas the son will stay with the Petitioner and both of them will have visitation right to meet their children, but the Opposite Party No.1 took away the Oppo

Click Here to Read the rest of this document