Bani Sahoo@Banita Sahoo And vs State Of Odisha And Others .... Opposite ...
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Orissa High Court

Bani Sahoo@Banita Sahoo And vs State Of Odisha And Others .... Opposite ... on 16 March, 2026

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    WPCRL No.127 of 2025
                 Bani Sahoo@Banita Sahoo and          ....          Petitioners
                 another
                                          Mr.Prasanta Kumar Sahoo, Advocate
                                            -versus-
                 State of Odisha and others           ....     Opposite Parties
                                                             Mr. Sanjay Rath,
                                              Additional Government Advocate
                           Ms.Madhusnata Routray, Advocate (for O.Ps.5 and 6)

                                   CORAM:
                       THE HON'BLE THE CHIEF JUSTICE
                                      AND
                 THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
                                   ORDER

Order No.                         16.03.2026
   04.      1.          Let the affidavit filed by the petitioners be taken on
            record.

2. Pursuant to our earlier direction passed on 09.03.2026, the petitioners as well as the opposite party nos.5 and 6 are personally present in Court today. They are represented by their respective counsel.

3. The writ petition, in the nature of habeas corpus, is taken out by the petitioners alleging illegal and wrongful detention of a minor child, who is six years of age, by the opposite party nos.5 and 6 and sought a relief for his rescue as well as the custody to be given to them.

4. It is one of the arduous tasks faced by the Judges when the issue relating to the custody of the child is projected; as the paramount consideration in this regard is the welfare of the child.

The undisputed facts revealed from the respective stands of the parties can be reasonably gathered that the said child was born from the womb of the petitioner no.1, whereas the child remained in the custody of the opposite party nos.5 and 6. Both the parties have taken different stands. According to the petitioner no.1, she was admitted in the hospital to give birth to the said child, but the husband, being petitioner no.2, was named in the FIR for the alleged commission of an offence under Section 302 of the Indian Penal Code, 1860 and was absconding to avoid the arrest. She felt helplessness situation as nobody was able to take care of her at the time of birth of the child. After being admitted in the hospital and giving birth to the said child, she was discharged without handing over the said child. She took a stand that immediately, she approached the police authorities reporting the illegal deeds of the hospital employees/staff, but the police officials were reluctant to lodge such FIR as her husband was absconding being an FIR named person. Ultimately, she has to forward that complaint by post and after the Covid-19 struck globally and the relaxation subsequently made by the Government, she approached the jurisdictional Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 and ultimately the same was directed to be registered.

5. On the other hand, opposite party nos. 5 and 6 are very much vocal on their stand that the petitioner no.1, after giving birth to the said child and being unable to take care of the it because of various compelling circumstances, handed over the child to the opposite party no.6 and since that date the child is being taken care of by the opposite party nos.5 and 6 as their own child. The said

opposite parties, through their appearing counsel, made several emotional submissions and do not intend to hand over the custody of the child, as they have developed an emotional and sentimental bond with him. Any abrupt change of the custody would create negative impact on the development of the said child. The fulcrum of the stand, as perceived in course of the hearing leads to an inescapable inference that the child was born from the womb of the petitioner no.1 but remained in the custody of the opposite party nos.5 and 6 from a very nebulous age.

6. It is one of the difficult tasks on the part of the Judge when a matter of such nature comes, more particularly claiming the custody of the child. To ascertain the welfare is one of the humongous tasks on the part of the Judges to decide, which cannot be squeezed simpliciter on the basis of an economic solvency and/or capacity, but needs to be considered on a variety of circumstances. Though the scope of the writ in the nature of habeas corpus is restricted to the production of a person who is illegal detained or who is unlawfully taken custody thereof, once it relates to a minor child, there is no impediment on the part of the Court to take into consideration the welfare of the child and the custody matter may be considered incidentally within the folds of such jurisdiction exercised by the High Court.

7. We would have proceeded simpliciter on the custody issues, but we noticed a disturbing and/or alarming fact emerged in course of hearing, more particularly, when the State handed over the birth certificate of the said child issued by the Department of Health and Family Welfare. The said birth certificate reveals the

name of biological father and mother as opposite party no.5, inculcating an impression that the said child was born from the wedlock of opposite party nos. 5 and 6 and, in fact, the opposite party no.6 gave birth to the said child. Such certificate belied the stand of the respective parties taken before us. According to the opposite party nos.5 and 6, the child was given birth by the petitioner no.1, who handed over the said child to the opposite party no.5 to take care of. If such a story is true, it raises a serious doubt on the role and the discharge of duties by the respective Health Centres where a birth is given to the child. The recording of the name of the biological father and mother on the basis of the records received from the Community Health Centre appears to be false, ingenuine and not in commensurate with the truth. It is more alarming if such practices are allowed to continue, as the record maintained by the officials is presumed to be true and correct unless dispelled by the convincing and corroborating evidence. The status and the paternity of the child is one of the important and integral factors of life and if the same is disturbed by any fraudulent act or the means, it creates a negative impact and deprives such child of many rights accrued on mere birth. Several serious doubts have percolated in our mind, which disturb our conscience in dealing with the issues like the one before us. How a record maintained by the Community Health Centre/Hospital can record the name of a female giving birth to a child when she never gave birth to such child? If the petitioner no.1 has given birth to a child, the hospital record must show that the child is born from her womb. The birth certificate is issued after a gap of one year from the date of the birth of a child, bearing the name of biological father and mother as

opposite party nos.5 and 6, which ought to have been issued within a timeline as said in the statute. It raises a further issue as what constrained the petitioner no.1 to hand over the custody of the child to the opposite party nos.5 and 6 when they are not related either by blood or anything. The handing over of a child to an alien or a stranger raises a doubt in our mind on the story set up by the opposite party nos.5 and 6. It further raises an issue that what prompted the opposite party no.6 to visit the hospital when she was neither pregnant nor was expecting a baby to be given birth at the hospital. All such issues create an incongruity on the stand of the opposite party nos.5 and 6 and raise a finger on the role and the conduct of the hospital staff or the staff of the Community Health Centre in forging the official record and/or creating a record which per se is illegal.

8. We, therefore, decided to expand the scope of the instant writ petition, bearing in mind that if such acts have a recurring feature, it not only undermines the statutory provisions relating to an adoption but also invites the dealing of the child for any gratification or otherwise. The moment the law is put in place where the child can be given in adoption, it is preposterous to suggest that the officials would whittle down the said provisions and allow the illegality to perpetuate for all time to come.

9. We, therefore, feel it prudent that the Commissioner- cum-Secretary to the Government in the Department of Health and Family Welfare, Odisha should be called and to appear before us in person and to explain the recording of the information in the birth certificate based upon the records maintained by the Community

Health Centre. In the event it is found that the record is tampered or fraudulently manufactured by the staff of the Community Health Centre, a time has come that the State should show alacrity in this regard and take immediate actions against those officials.

10. Considering the peculiar facts, more particularly that the boy, who is six years of age, is living with the opposite party nos. 5 and 6 since birth, we do not intend to pass any order for handing over the child to the petitioners as of now, but certainly we cannot overlook the fact that a biological father has every right to interact with the said child. The interaction and/or visitation of a child may, at times, create an emotional bonding and the void which has been created may be filled up for the betterment of the child in future.

11. We, therefore, direct the opposite party nos.5 and 6 to give access to the said child to the petitioners on every weekend between 4.00 P.M. to 6.00 P.M. at their residence without being personally present during such visitation, so that they can spend good time with the child in order to establish the emotional bonding.

12. This is an interim arrangement with intent to make the child know about his biological parents and create an emotional bonding for any future directions to be passed by this Court. The opposite party nos.5 and 6 shall ensure a congenial atmosphere to be maintained and no interference would be appreciated during such visitation to avoid any rival allegations to pour in this litigation.

13. We direct the Officer-In-Charge of the concerned Police Station, Kamakhyanagar, to depute a lady police officer to remain at the residence of the opposite party nos.5 and 6 but shall not enter into the place of visitation unless the circumstances so warrant. In the event opposite party nos.5 and 6 create any ruckus or obstacle during such visitation, immediate action shall be taken so that the visitation is not hampered.

14. List this mater on 6th April, 2026 when the Commissioner-cum-Secretary to the Government in the Department of Health and Family Welfare, Odisha shall appear in person and explain the conduct and the role of the staff/officials of the Community Health Centre at Kamakhyanagar.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge Aswini

Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 19-Mar-2026 17:31:36