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2018 DIGILAW 752 (ORI)

Batakrushna Sahoo v. Mamata Sahoo

2018-08-21

D.DASH

body2018
JUDGMENT The judgment dated 11.05.2018 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No.734 of 2017 has been assailed in this appeal. 2. The petitioner-respondent filed an application nomenclature as one under Sections 8 and 25 of the Hindu Minority and Guardianship; Act read with Section 7 of the Family Courts Act for custody of her minor son, namely, Aditya Sahoo. It is stated that the petitioner-respondent had married the appellant-opposite party on 13.07.2016 at Bhubaneswar and thereafter they led their conjugal life. On 12.06.2017 they were blessed with a son namely, Aditya Sahoo. It is alleged that a few months after their marriage, the appellant-opposite party and his family members meted out torture at the respondent-petitioner. It is further alleged that they used filthy languages against her and also physically assaulted her for coercing her to fulfil their further demand of dowry. It is also the case that her father had given cash of Rs.90,000/- with house hold articles and ornaments worth of Rs.10,00,000/- at the time of marriage. It is stated that when the respondent-opposite party denied to tell more to her parents who were not in a position to meet further demand of dowry, she was tortured. After birth of the son, the appellant-petitioner and his mother kept the newly born child away from the respondent-petitioner when the child was in absolute need of breast feeding from his mother and the respondent-petitioner was never allowed to keep her son with her. When the matter stood thus, on 19.10.2017 the appellant- opposite party and the member of his family drove out the respondent-petitioner from their house keeping away the minor son with them. Immediately thereafter, the petitioner being the guardian of her minor son namely Aditya Sahoo, both of person and property, filed an application before the Family Court, Bhubaneswar for return of the custody of her son and accordingly prayed to direct the appellant-opposite party hand over the custody of the male child, Aditya to her. 3. The appellant-opposite party (husband), denies the allegation made by the respondent-petitioner (wife) against him and his family members. It is his case that the respondent-petitioner herself on her own will and volition has purposely deserted the appellant-opposite party and their minor son on 19.07.2017. It is further stated that since the time of birth, she has been neglecting the minor son. It is his case that the respondent-petitioner herself on her own will and volition has purposely deserted the appellant-opposite party and their minor son on 19.07.2017. It is further stated that since the time of birth, she has been neglecting the minor son. She took no care for the breast feeding and in respect of the matter relating to health, well being of said minor male child. It is stated that the mother, elder sister, elder sister-in-law and the appellant-opposite party have been taking all the required care for the male child, Aditya, who is now living happily with them and therefore, there is no need to hand over the custody of the child to the respondent-petitioner. 4. On the above rival pleadings, the Court below appears to have rightly formulated two points for determination. Upon examination of the evidence on record, on the first point it has held that it would be ideal to give custody of the male child namely, Aditya to the respondent-petitioner and in so far as the next point with regard to the maintainability of the proceeding, finding has been returned in favour of the respondent-petitioner. 5. Learned Counsel for the appellant submits that here the Family Court, Bhubaneswar had no jurisdiction to entertain the application for custody of the minor male child as has been sought for by the respondent-petitioner in view of the label of the petition. Taking this Court through the provisions of Guardians and Wards Act and Section 7 of the Family Courts Act, it is his submission that the Family Court, Bhubaneswar lacks the jurisdiction in the matter since the very application for custody of the minor has to be filed and entertainable by the Court having the jurisdiction over the area where the minor ordinarily resides. He has relied upon the case of Konduparthi Venkatesdwarlu & others vrs. Ramavarapu Viroja Nandan and others, 1988 (II) OLR 391. He has also relied upon the ratio decided in the case of Harashad Chiman Lal Modi vrs. DLF Universal Ltd: (2005) 7 SCC 791 to say that the order is nonest since it has been passed by the Court without having the jurisdiction. Ramavarapu Viroja Nandan and others, 1988 (II) OLR 391. He has also relied upon the ratio decided in the case of Harashad Chiman Lal Modi vrs. DLF Universal Ltd: (2005) 7 SCC 791 to say that the order is nonest since it has been passed by the Court without having the jurisdiction. His submission on merit is that the learned Court below has not properly appreciated the evidence on record so as to arrive at a conclusion as to under whose custody, the welfare of the minor would be best guarded and served. It is his submission that the learned Court be best guarded and served. It is his submission that the learned Court below has simply been swayed away in looking at the age of the minor and the fact that the respondent-petitioner is the mother, without bestowing due attention to the evidence on record and other circumstances emanating there from aiming at the welfare of the minor. For all these above grounds, he urges that the impugned order relating to the custody of the minor son of the parties, directing the appellant-opposite party to hand over the custody of the minor male child i.e. Aditya to the respondent-petitioner, is liable to be set aside. 6. Learned Counsel for the respondent-petitioner submits in support of the impugned judgment relating to the custody of the minor male child, i.e. Aditya in favour of this respondent-petitioner (mother). It is his submission that the Court below has taken the welfare of the minor child as the paramount consideration in giving the ruling in favour of the appellant-opposite party (mother) to be the custodian and very rightly has allowed the visitation right to the appellant-opposite party (father). He further submits that the learned Court below has analyzed the evidence and keeping in view the age of the minor male child and all other surrounding circumstances at those stand at present, has arrived at a right decision. He thus submits that the appeal does not bear any merit. 7. Let me first address the submission as regards the maintainability of the application and the jurisdiction. The jurisdiction of the Family Court as regards the suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor has been provided under Section 7 (1) (g) of the Family Courts Act. 7. Let me first address the submission as regards the maintainability of the application and the jurisdiction. The jurisdiction of the Family Court as regards the suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor has been provided under Section 7 (1) (g) of the Family Courts Act. The petition filed by the respondent-petitioner has been nomenclatured as to be one under Sections 8 and 25 of the Hindu Minority and Guardianship Act read with Section 7 of the Family Courts Act. Section 8 of the Hindu Minority and guardianship Act states about the powers of natural guardian and the said act contains in total thirteen Sections. Under Section 25 of the Guardians and Wards Act, it is seen that said Section deals with title of guardian to custody of ward and that if a ward leaves or is removed from the custody of a guardian of his person and the Court is of the opinion that it is for the welfare of the ward to return to the custody of his guardian, it may make an order for his return as also such other orders so as to enforce the said order of return for being delivered to the custody of the guardian. Chapter-II of the Family Courts Act concerns with the jurisdiction of the Family Court. As provided under Section 7 (1) (g), a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor, is to be entertained by the Family Court exercising all the jurisdiction as was exercisable by any District Court or any Subordinate Court under any law for the time being in force to the exclusion of the jurisdiction of said Courts. Although nomenclaturing as to the application does not appear to be in order, however, the application being for custody of the minor male child, ;keeping in view the settled position of law that the wrong nomenclature, is not a ground to reject the application in limini, the submission of the learned counsel for the appellant stands repelled as the technicality cannot be allowed to prevail over the substantial justice so as to prevent its flow. 8. 8. Next coming to the objection relating to the lack of jurisdiction of the Family Court at Bhubaneswar to entertain the application, it be stated here that the same primarily concerns with the territorial jurisdiction of the Court. It is not a case that the Family Court at Bhubaneswar is having no jurisdiction in the matter of adjudication relating to the custody of the minor. As provided under sub-Section (1) of Section 21 of the Code of Civil Procedure, no such objection is allowable in appeal or revision unless such objection had been taken in the Court of the first instance at the earliest possible opportunity, and in all cases where the issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. For the purpose, I have carefully gone through the lower Courts record which also contains the written submission filed by the parties. No where, the appellant-opposite party has raised such objection as to the lack of territorial jurisdiction on the part of the Family Court at Bhubaneswar to entertain the application and adjudicate upon the same. The appellant-opposite party in his evidence has also not whispered a word raising such objection in his evidence. 9. Learned Counsel for the appellant-opposite party submits that it is only the Court under whose jurisdiction minor ordinarily resides can entertain the application so as to decide the dispute and therefore the learned Court below ought to have looked into that aspect as to whether the minor in the case ordinarily resides within its jurisdiction or not. If the submission of the learned counsel for the appellant-opposite party is accepted, then this application would have been entertainable by Family Court at Puri, taking into account the fact that the minor has been ordinarily residing at village Jaipur in the district of Puri since his birth. In the instant case, the application has been entertained and decided by the Family Court at Bhubaneswar. Such issue relating to the territorial jurisdiction of the Court as per the provision of Section 21 (1) of the Code of Civil Procedure ought to have been raised by the appellant- opposite party at the earliest point of time of his appearance before the said Court pursuant to the notice and as provided in law. Such issue relating to the territorial jurisdiction of the Court as per the provision of Section 21 (1) of the Code of Civil Procedure ought to have been raised by the appellant- opposite party at the earliest point of time of his appearance before the said Court pursuant to the notice and as provided in law. However, that having not been done any point of time even till conclusion of the proceeding, the objection now raised for the first time before this appellate Court has to be whittled down. Moreover, no such failure of justice appears to have occasioned by such entertainment of the application by the Family Court, Bhubaneswar. For the aforesaid, the decision in the case of Harshad Chiman Lal Moldi (supra) does not come to the aid of the submission of the learned counsel for the appellant and the other cited case of Kanduparthi Venkateswarlu (supra) also needs no further discussion. 10. Coming to the merit, it is profitable to adopt the language of Section 17 of the Guardians and Wards Act, 1890 for determination of the question of ‘welfare’ of the minor, which reads as follows : “17. Matter to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this Section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. Xx XX XX (5) The Court shall not appoint or declare any person to be a guardian against his will.” Sub-Section (2) of Section 17 provides that Court while considering the question of ‘welfare’ of the child shall have regard to the age, sex and religion of the minor, so also the character and capacity of the proposed guardian and his nearness of kind to the minor etc. The same is also the consideration while determining the question of ‘welfare’ for custody of the child. Thus, broadly the following questions shall be considered along with the others for determining welfare’ of the child. Those are : (a) Who would have the better care and better consideration for the welfare of the minor; (b) Where he or she is likely to be happier; (c) By whom mental and physical development and comfort of the child can be better looked after; (d) Who has not only the desire but a determination, not only in concept but also capacity to provide for a better education and medical facility as well as uninterrupted nourishment of the child; And (e) Who would be available by the side of the child at the time of his/her need for mental as well as physical support and can provide proper care, counselling and give love and affection as well as protection and patting up. The Apex Court in the case of Gaurav Nagpal vs. Sumedha Nagpal, reported in AIR 2009 SC 557 held as follows :- “42. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli’s case (supra), the Court has to due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 44. The word ‘welfare’ used in Section 13 of the Act to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases.” 11. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases.” 11. Perusal of the impugned order reveals that the Court below has taken into consideration the provision of Section 6 (a) of the Hindu Minority and Guardianship Act that the custody of the minor who has not completed the age of five years, shall ordinarily be with the mother and keeping the same in view, in the facts and circumstances of the case as have come out in evidence, the Court below has passed the impugned order holding that the custody of the minor child should be with the respondent-petitioner (mother). The minor has just crossed two years of age. It is said by the appellant-opposite party that the appellant-petitioner since beginning could not adjust in the village. Having gone from the City of Bhubaneswar, when she did not find that city atmosphere in the rural area, she could not have the mental make up and further adjust with the living conditions in their joint family at village Jaipur under Sakhigopal Police Station in the District of Puri. It has been alleged that the respondent-petitioner after birth of the male child neglected in taking his care and thereafter on her own will and desire left the matrimonial home deserting everyone including her minor son presently under the care and custody of the elder brother’s wife of the appellant-opposite party and his mother. So the minor child when had been neglected by the respondent-petitioner and she was not taking any care as regards feeding and his well being, which was being looked after by the other female members of the family, she is unfit to be the custodian of the minor son. It is the evidence of respondent-petitioner on oath that the appellant-opposite party is running a whole sale shop and remains busy there. It has been further deposed that despite torture meted out at her stretching over the period, she was continuing to stay and lastly, has been driven out. She has denied the allegation that she is guilty of desertion of her husband and son. The appellant-opposite party has denied the allegation levelled against him and against his family members in torturing the respondent-petitioner. She has denied the allegation that she is guilty of desertion of her husband and son. The appellant-opposite party has denied the allegation levelled against him and against his family members in torturing the respondent-petitioner. It is his evidence that the minor child is under his custody and his mother and bhauja (elder brother’s wife) are assisting him in the matter of taking care of the minor male child aged about two years. The mother of the respondent-opposite party aged about sixty years has deposed that she is now taking care of feeding of the minor male child and his well being and her elder daughter-in-law is also talking care of the minor male child. The elder sister-in-law has also deposed in the same vein. The neighbour and the Asha Worker of the village have also been examined. Keeping in view the welfare of the minor as paramount consideration and upon appreciation of the evidence on record, cumulatively viewing the circumstances including those concerning the parties, I do not find that a case has been made out to deprive the respondent-petitioner of the custody of her two year old minor son and to prefer the appellant-opposite party for the same. Thus I find no justifiable reason to set aside the order impugned in this appeal in handing over the custody of the minor male child to the respondent-petitioner providing the visitation right to the appellant-opposite party and his family members. In the result, the appeal stands dismissed. No order as to cost. Appeal dismissed.