Orissa High Court
Sanjay Sharma vs Dolly @ Sakhi Sharma & on 10 October, 2025
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.10091 of 2025
(In the matter of an application under
Articles 226 & 227 of the Constitution of India)
Sanjay Sharma ....... Petitioner
-Versus-
Dolly @ Sakhi Sharma &
another ....... Opposite Parties
Advocate for the parties
For Petitioner : Mrs. Suman Modi,
Advocate
For Opp. Party No.1 : Mr. Kirtan Dang,
Advocate
For Opp. Party No.2 : None
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 12.08.2025 Date of Judgment: 10.10.2025
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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
W.P.(C) No.10091 of 2025 Page 2 of 15
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
W.P.(C) No.10091 of 2025 Page 3 of 15
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 Opposite Party No.2,
W.P.(C) No.10091 of 2025 Page 4 of 15
the minor son, forcefully from Cambridge School and
thereafter, she is not allowing the Petitioner to meet his
son, despite such mutual understanding. That apart,
during conciliation/mediation, she neither cooperated
with the Counsellor nor attended the counselling for
which, the Counsellor was being constrained to give a
detailed report on 21.12.2024, which forms part of the
proceeding before the Court below.
7. Learned Counsel for the Petitioner further
submitted that, the Counsellor‟s report well indicates
that the present Petitioner, who is also the Petitioner
before the Court below, is desirous to take the custody of
his two kids, namely, „Shivay & Shanvi" from the custody
of Opposite Party No.1 and being the father of the
children, he is capable to take the custody of his children
and maintain them for a prosperous life. However, in view
of the mutual understanding between the parties that the
son will stay with the Petitioner and the daughter will
stay with Opposite Party No.1, having visitation rights of
both of them, the Petitioner did not file any application
for custody of the daughter. Yet, the learned Court below,
W.P.(C) No.10091 of 2025 Page 5 of 15
while rejecting the application for visitation, erroneously
gave an observation that the Petitioner is only interested
to see his son.
8. Learned Counsel for the Petitioner further
submitted that the visitation right is an important right of
the parents to see the children born out of their wedlock.
The Opposite Party No.1 managed to get a decree of
divorce in MAT Case No.94 of 2023 from the Court of
learned Judge, Family Court, Bargarh ex-parte against
the Petitioner. Immediately thereafter, she remarried an
elderly person, who is around 56 years having three
children. But the Petitioner is still unmarried and is
desperate to meet his children, including the son, who
was staying with him as per the mutual understanding.
She further submitted that the said fact regarding
mutual understanding was never disputed by the
Opposite Party No.1. Rather, admittedly, she took away
the Opposite Party No.2 son from the school on the plea
of his sickness and keeping with her the minor son on
the plea of taking his care. The learned Court below,
during pendency of the trial in C.P. No.543 of 2024,
W.P.(C) No.10091 of 2025 Page 6 of 15
ought to have allowed the application of the Petitioner for
visitation so also communication with the Opposite Party
No.2 son, instead of rejecting the said application on the
plea that the Petitioner has not mentioned the place of
visit and manner to meet his son and he is only
interested to see his son. She further submitted that the
observation regarding possibility of untoward incident, if
the Petitioner will be allowed to visit the child in absence
of convenient place of visit, is baseless in absence of any
material on record to substantiate such observation/
finding.
9. Learned Counsel for the Petitioner further
submitted that the learned Court below ought to have
found out convenient days in a month, time and place of
visit, in consultation with the parties to the said lis so
also their respective Counsels, who represent them in
C.P. No.543 of 2024, instead of rejecting the application
of the Petitioner on the ground that there was no mention
in the said petition regarding place of visit and manner of
meeting his son.
W.P.(C) No.10091 of 2025 Page 7 of 15
10. Per contra, learned Counsel for the Opposite
Party No.1 submitted that there is no infirmity in the
impugned order passed by the learned Court below. Such
an application for visitation so also communication with
the son filed by the Petitioner, being premature, was
rightly rejected by the learned Court below.
11. It is worthwhile to mention here that this
Court, vide order dated 16.05.2025, as an interim
measure, permitted the Petitioner to make
calls/WhatsApp calls once in a day to the Opposite Party
No.1, if he intends to talk to his son (Opposite Party
No.2). That apart, vide order dated 05.08.2025, both the
parties were directed to remain present before this Court
along with Opposite Party No.2 son on 12.08.2025,
ordering therein that the matter will be taken up in
Chamber at 2.00 P.M.
12. Thereafter, the Petitioner filed an Affidavit on
07.08.2025 indicating therein that the Opposite Party
No.1 only acted in terms of the direction given by this
Court for ten days. Thereafter, the Opposite Party No.2,
though wanted to talk to the Petitioner, but he had to act
W.P.(C) No.10091 of 2025 Page 8 of 15
as per the instruction of the person, who was behind the
screen. Thereafter, he did not respond. It was also alleged
in the said Affidavit that the voice recording of the
Opposite Party No.2 has been stored in a pen drive,
wherein he disclosed that he wants the company of the
Petitioner. On the very same day an Affidavit was also
filed by the Opposite Party No.1 indicating therein that as
per the direction given by this Court on 16.05.2025, she
is allowing the Opposite Party No.2 to talk with the
Petitioner on call so also through WhatsApp video calling.
13. On 12.08.2025, this Court interacted with
Shivay Sharma (Opposite Party No.2) alone in Chamber.
The Opposite Party No.2 (Shivay Sharma), while entering
into the Chamber of the Court, was weeping. However,
after lot of counselling by the Court, Shivaya Sharma
became calm. On being asked about the reason,
surprisingly, Shivay replied in hindi saying "Bahar jo
Uncle khade huein he unse dar lagta hai". By that
time, this Court had no occasion to see or know as to
who was standing outside the Chamber. On being further
asked, what is the name of the said person, the Opposite
W.P.(C) No.10091 of 2025 Page 9 of 15
Party No.2 said his name to be "Sanjay Sharma", the
present Petitioner. On being further asked as to what is
his father‟s name, surprisingly, Shivaya answered that
"Ashok Lodha" is his father, who is the second husband
of the Opposite Party No.1.
14. After such interaction with the minor son,
both the Petitioner and the Opposite Party No.1 were
called to the Chamber. Only then, this Court came to
know that the Opposite Party No.2-Shivay Sharma was
intending to say before this Court that he is allegedly
afraid of his natural father, that too addressing him as
„Uncle‟, which is almost unbelievable and seems to be
outcome of being tutored by Opposite Party No-1. There
after, both the Petitioner and the Opposite Party No-1
started making allegations and counter allegations
against each other before this Court. The Petitioner
submitted that he had no occasion to contest the
application for divorce. He only came to know about such
decree of divorce in MAT Case No.94 of 2023 much after
passing of the said ex-parte judgment. As per the mutual
understanding, he has a right to keep Shivay with him.
W.P.(C) No.10091 of 2025 Page 10 of 15
But the Opposite Party No.1 has taken away him
forcefully.
15. On a prima facie consideration, admitted facts
on record, including the Counsellor‟s Report, so also the
admitted fact that the Petitioner has kept himself away
from remarriage so also custody of both the children is at
present with their mother, who is married to an elderly
person, who is already having three children, this Court
is of the view that the refusal of visitation right to the
natural father by the learned Judge, Family Court,
Cuttack vide the impugned order appears to be unjust
and contrary to the settled position of law.
16. In a recent judgment dated 14.05.2025,
passed in W.P.(C) No.28784 of 2019 (Manjusha
Singhania Vs. Nimish Singhania), the coordinate
Bench held as follows:
"5. Admittedly, the husband-OP has filed MAT Case
No.19 of 2016 against the Petitioner No.1-wife for
seeking divorce and in such MAT Case, the OP-
husband has filed I.A. No.127 of 2017 seeking
custody of the child, but the learned trial court
admittedly by an order passed on 16.12.2017 has
directed for its disposal along with the original MAT
Case. Be that as it may, the visitation right is an
important right of either of the parents to see
the children born out of their wedlock. It is not
in dispute that the father in this case has no
W.P.(C) No.10091 of 2025 Page 11 of 15
access to the child, but he has definitely right to
see his son provided the same is in the
paramount interest of the child, who has right
to the affection of both of his parents. It is also
equally important that the child is entitled to
love & affection, protection & guidance of both
the parents and their family. While deciding
any matters relating to the custody or visitation
right of the child, the paramount consideration
is the welfare of the child and if the welfare of
the child so demands, the technical objection
cannot come in the way, but while deciding the
welfare of the child, it is not the view of one
spouse alone which has to be taken into
consideration, however, the Court is required to
decide the issue on the basis of what is in the
best interest of the child. The child is always the
victim in the custody battles and in the fight of egos
and acrimonies between two spouses, but the
childhood of such child is the worse sufferer and such
childhood is spoiled due to the alter egos of the
spouses.
6. It is a matter of fact that the child especially of
tender years requires love, affection, company,
protection and guidance of both the parents and these
are not only the requirement of the child, but also are
his/her basic human rights and need. Further, the
child should not be denied with proper care and
affection, merely because his/her parents are at war
with each other. The child is not an inanimate object
which can be tossed from one parent to other. This
Court is of the considered opinion that
excepting the extreme circumstance, one parent
should not be denied to contact or visit his/her
child and the cogent reasons must be assigned
while refusing visitation right of either of the
spouses to their child."
(Emphasis supplied)
17. Further, the Supreme Court in Yashita Sahu
Vs. State of Rajasthan, reported in (2020) 3 SCC 67,
held as follows:
W.P.(C) No.10091 of 2025 Page 12 of 15
"22. A child, especially a child of tender years
requires the love, affection, company, protection of
both parents. This is not only the requirement of the
child but is his/her basic human right. Just because
the parents are at war with each other, does not
mean that the child should be denied the care,
affection, love or protection of any one of the two
parents. A child is not an inanimate object which can
be tossed from one parent to the other. Every
separation, every reunion may have a traumatic and
psychosomatic impact on the child. Therefore, it is to
be ensured that the court weighs each and every
circumstance very carefully before deciding how and
in what manner the custody of the child should be
shared between both the parents. Even if the
custody is given to one parent, the other parent
must have sufficient visitation rights to ensure
that the child keeps in touch with the other
parent and does not lose social, physical and
psychological contact with any one of the two
parents. It is only in extreme circumstances that
one parent should be denied contact with the
child. Reasons must be assigned if one parent is
to be denied any visitation rights or contact
with the child. Courts dealing with the custody
matters must while deciding issues of custody
clearly define the nature, manner and specifics
of the visitation rights.
23. The concept of visitation rights is not fully
developed in India. Most courts while granting
custody to one spouse do not pass any orders
granting visitation rights to the other spouse. As
observed earlier, a child has a human right to have
the love and affection of both the parents and courts
must pass orders ensuring that the child is not totally
deprived of the love, affection and company of one of
her/his parents.
24. Normally, if the parents are living in the
same town or area, the spouse who has not been
granted custody is given visitation rights over
weekends only. In case the spouses are living at a
distance from each other, it may not be feasible or in
the interest of the child to create impediments in the
education of the child by frequent breaks and, in such
cases the visitation rights must be given over long
W.P.(C) No.10091 of 2025 Page 13 of 15
weekends, breaks and holidays. In cases like the
present one, where the parents are in two different
continents, effort should be made to give maximum
visitation rights to the parent who is denied custody.
(Emphasis supplied)
18. Since visitation right is an important right of
either of the parents to see the children born out of their
wedlock and while deciding the welfare of the child, it is
not the view of one spouse alone, which has to be taken
into consideration, this Court is of the view that the
Court is required to decide the issue of visitation on the
basis of what is in the best interest of the child. This
Court is of the further view that the impugned order
passed by the learned Judge, Family Court, Cuttack
deserves interference.
19. Accordingly, the impugned order dated
24.03.2025 passed in I.A. No.117 of 2024, arising out of
C.P. No.543 of 2024, is set aside. The matter is remitted
back to the learned Judge, Family Court, Cuttack to pass
appropriate order afresh in consultation with the parties
so also their respective Counsels, who represent them in
the proceeding in C.P. No.543 of 2024, to decide the
place, frequency and time of visit so also the manner the
W.P.(C) No.10091 of 2025 Page 14 of 15
Petitioner should meet with his son till disposal of C.P.
No.543 of 2024 and other terms and conditions, as would
be deem just and proper, to maintain decorum and to
avoid untoward incident during such meeting of the
Petitioner with his son. Learned Court below shall also
put appropriate condition enabling the Petitioner to be in
touch with Opposite Party No.2 telephonically or through
WhatsApp communication during pendency of the C.P.
No.543 of 2024. Appropriate order, in terms of the
observation made above, shall be passed within three
weeks hence. Till then the interim arrangement made by
this Court regarding telephonic/WhatsApp Call shall
continue as before.
20. With the aforesaid observation and direction,
the writ petition stands allowed and disposed of. No order
as to costs.
................................
S.K. MISHRA, J.
Orissa High Court, Cuttack
The 10th October, 2025/PrasantSignature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 10-Oct-2025 14:58:53
