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2006 DIGILAW 490 (ORI)

Prasanna Kumar Sahu v. Dipti Sahu

2006-07-07

L.MOHAPATRA

body2006
JUDGMENT L. MOHAPATRA, J. — The appellant is the father of the minor respondent and has filed this appeal against the judgment and order dated 30th November 2004 passed by the learned Ad hoc Addl. District and Sessions Judge Fast Track Court, Baripada appointing Shri Biranchi Narayan Behera, the maternal grandfather of minor-respondent as guardian of minor. 2. The appellant had married Kanakalata, daughter of the aforesaid Biranchi Narayan Behera in July, 1998. On 15.6.1999 the minor-child was born and after giving birth to the minor-child, her mother Kanakalata died on 16.6.1999. After death of Kanakalata, her father Biranchi Narayan Behera took the minor-child to his house and since then she has been residing with her maternal grand-father. After death of Kanakalata, the appellant married for the second time and never visited the house of Biranchi Narayan Behera to see his child and accordingly the aforesaid Biranchi Narayan Behera filed an application under Section 7 read with Section 10 of the Guardians and Wards Act, 1890 for being appointed as guardian of the minor girl Dipti Sahu. The aforesaid application was resisted by the appellant on the ground that he is the natural guardian of the minor child and that the child has been unauthorizedly confined in the house of her maternal grand-father and in spite of several efforts made, the custody of the minor-girl has not been given to him. It was also contended that the maternal grand-father is aged about 70 years and he has also taken a second wife and not being in a position to maintain the minor-girl, custody of the child should not be given to the maternal grand-father. The trial Court on analysis of the evidence turned down the prayer made on behalf of the appellant and directed that Biranchi Narayan Behera who is the maternal grand-father of the minor-girl to be her guardian. 3. Dr. S. Dash, the learned counsel appearing on behalf of the appellant challenges the impugned order basically on two grounds. The first ground taken by the learned counsel appearing for the appellant is that the father being the natural guardian, custody of the minor girl should have been given to him. In this connection, she has referred to Section 19(b) of the Act and has also relied upon some decisions. The first ground taken by the learned counsel appearing for the appellant is that the father being the natural guardian, custody of the minor girl should have been given to him. In this connection, she has referred to Section 19(b) of the Act and has also relied upon some decisions. The second ground of challenge is that the maternal grand-father who has been appointed as the guardian is 72 years old and being a retired employee is not in a position to maintain the child as a result of which an applica¬tion under Section 125 Cr.P.C. was filed on behalf of the minor child for maintenance. Apart from the above, it was contended that merely on the basis of the statement of the child, the Court should not have appointed her maternal grand-gather as guardian. 4. Shri Barik, the learned counsel appearing for the respondent submitted that the appellant immediately after death of Kanakalata took a second wife and there are two children through the second wife. It was also contended by Shri Barik that since the time of birth the minor girl is staying with her mater¬nal grand-father and she openly expressed before the trial Court that she wants to stay with her maternal grand-father. Apart from the above, it was also contended by Shri Barik that as father of the minor-girl, it is the duty of the appellant to look after her and he having not done so, the application under Section 125 Cr.P.C. had to be filed for grant of maintenance. Merely because an application for grant of maintenance was filed does not ipso facto mean that the maternal grandfather has no means to maintain the minor-girl. 5. On perusal of the respective cases of the parties and from the record it appears that the appellant had married Kanaka¬lata, daughter of Biranchi Narayan Behera in July, 1998. The minor-girl Dipti Sahu was born on 15.6.1999 after an operation was conducted on her mother and her mother died on 16.9.1999 i.e. one day after she gave birth to the minor-child. It appears that the minor-girl remained with the appellant for few months where¬after she has been staying with her maternal grandfather till today. The minor-girl Dipti Sahu was born on 15.6.1999 after an operation was conducted on her mother and her mother died on 16.9.1999 i.e. one day after she gave birth to the minor-child. It appears that the minor-girl remained with the appellant for few months where¬after she has been staying with her maternal grandfather till today. It also appears that the appellant married for the second time three months after the death of his first wife Kanakalata and it is stated that by the learned counsel for the appellant that at present the appellant has two children through his second wife. The record also shows that an application under Section 125 Cr.P.C. was filed in the year 2000 claiming maintenance on behalf of the minor-girl and the said application was allowed on 6.4.2004. A revision filed by the appellant against the said order was dismissed on 7.3.2005 and challenging the same, Crimi¬nal Misc. Case No.1319 of 2005 has been filed before this Court and the same is pending consideration. From the impugned order it also appears that the minor-girl was produced before the trial Court and she expressed her desire to stay with her maternal grand-father and not with the appellant. On the basis of such facts available on record, the contention of the learned counsel appearing for the appellant need to be examined. 6. Dr. Dash, the learned counsel appearing for the appel¬lant drew attention of the Court to Section 19(b) of the Act and submitted that father being the natural guardian, unless he is declared to be unfit to act as guardian, ordinarily should be appointed as the guardian. The learned counsel also in this connection relied upon some decisions. The first decision relied upon by the learned counsel for the appellant is the case of Yudhistir Mahananda v. Dalimba Mohananda reported in 69 (1990) C.L.T. 127. While interpreting Section 6 of the Hindu Minority and Guardianship Act, 1956, the Court held that preferential guardian is the natural father except that when the minor has not completed five years, he/she shall be ordinarily with the mother. Relying on this decision, it was contended by Dr. Dash that after completion of five years, the father is entitled to act as guard¬ian. This decision relates to Hindu Minority and Guardianship Act whereas the present case is under Guardians and Wards Act, 1890. Relying on this decision, it was contended by Dr. Dash that after completion of five years, the father is entitled to act as guard¬ian. This decision relates to Hindu Minority and Guardianship Act whereas the present case is under Guardians and Wards Act, 1890. Reliance was placed on a decision of the Punjab and Haryana High Court in the case of Babu Ram and another v. Keshwa Chand Joshi reported in AIR 1974 Punjab and Haryana 174. The aforesaid deci¬sion laid down the guidelines for appointment as guardian. “The following factors should be kept in mind while arriving at a decision to discharge the appointment of a guardian of the minor : 1. The natural guardian should be given preference if his appointment is not found to be against the welfare of the minor unless he is found to be unfit. 2. Preference of the minor, if he is sufficiently old, should be given due weight. 3. The only and the paramount consideration for the purpose of appointing a guardian is the welfare of the minor.” 7. The learned counsel also referred to a decision of the Madras High Court in the case of S. Abboy Naidu v. R. Sundarara¬jan reported in AIR 1989 Madras 129. In the aforesaid case the mother of the minor child committed suicide and the minor child was taken away by the maternal parents. The Court on analysis of the evidence found that the father of the minor child had suffi¬cient means and also assisted by his parents in looking after the minor child and accordingly held that the father is entitled to be appointed as guardian. On similar facts another decision of this Court was also referred to in the case of Nilakantha Pati v. Ananta Mishra reported in 1989 (II) O.L.R. 406. On analysis of all the decisions, it is clear that the welfare of the child is the paramount consideration while appointing a guardian. It will therefore depend on the capacity of the respective parties in maintaining the minor child. Though Section 19(b) of the Act provides that the father unless declared unfit to be appointed as the guardian, the Court is required to see on the basis of the evidence adduced before it as to whether the father is fit and capable of maintaining the minor child. It was also contended by Dr. Though Section 19(b) of the Act provides that the father unless declared unfit to be appointed as the guardian, the Court is required to see on the basis of the evidence adduced before it as to whether the father is fit and capable of maintaining the minor child. It was also contended by Dr. Dash that though the appellant had married for the second time and has been blessed with two children through the second wife, still he has capacity of maintaining the minor child and therefore he is entitled to be appointed as guardian of the minor girl. She also contended that the maternal grand-father does not have sufficient means to maintain the minor girl, otherwise an application under Section 125 Cr.P.C. could not have been filed against appellant for grant of maintenance of the minor child. In the application filed under Section 125 Cr.P.C. an objection was filed by the appellant. It appears from the judgment passed by the learned S.D.J.M. allowing maintenance that the appellant had taken a stand that the maternal grandfather has sufficient means and is able to maintain the minor girl. He had also taken a stand that he has no sufficient means as alleged in the petition. In view of such a stand taken in the proceeding under Section 125 Cr.P.C. it is not open for the appellant now to take a stand that he has sufficient means to look after the minor child and the maternal grant-father does not have. I am, therefore of the view that the appellant in the present proceeding has taken different stand than what he has taken in the proceeding under Section 125 Cr.P.C. and accordingly such a stand is not acceptable. Apart from the above, merely because an application for grant of main¬tenance was filed on behalf of the minor-child does not by itself prove that the maternal grand-father does not have sufficient means to maintain the minor child specially when the appellant himself has taken a stand in the proceeding under Section 125 Cr.P.C. that the maternal grand-father has sufficient means to maintain the minor girl. 8. No coming to the second ground of challenge, it appears from the order of the trial Court that the minor girl was pro¬duced before the learned Presiding Officer and on being ques¬tioned she expressed her desire to stay with her maternal grand-father. 8. No coming to the second ground of challenge, it appears from the order of the trial Court that the minor girl was pro¬duced before the learned Presiding Officer and on being ques¬tioned she expressed her desire to stay with her maternal grand-father. The learned counsel appearing for the appellant relied upon two decisions and submitted that in the aforesaid two cases the minor child was 7 and 9 years old respectively, but the Court did not accept the desire of the minor on the ground that at that stage the minor cannot form an opinion. These two decisions are reported in AIR 1982 S.C. 1276 Thirty Hoshie Dolikula v. Hoshian Shayaksha Dolikula and 59 (1985) C.L.T. 151 Smt. Ratna Manjari Sahu v. Purna Chandra Sahu. In the present case the minor girl at the time of the proceeding was aged about five years. On 23.11.2004 the minor girl was produced before the learned Presid¬ing Officer in chamber and the learned Presiding Officer asked questions to the minor girl in presence of the Advocates appear¬ing for both the parties. When the minor child was asked to identify the appellant, she not only failed to identify her father but also expressed her willingness to remain with the maternal grandfather. From the judgment, it appears that the learned Presiding Officer was satisfied that the minor child understood the question put to her and she answered rationally. I, therefore, do not find any illegality committed by the trial Court while relying on the desire of the minor child in coming to a conclusion. It also appears from the judgment that not only the trial Court relied upon the statement of the minor girl but also on other evidence available on record to find out as to who can look after the minor child better. 10. In view of the discussions made above, I do not find any merit in the appeal and the same is accordingly dismissed. Appeal dismissed.