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2020 DIGILAW 185 (ORI)

Ashok Kumar Padhee v. Ajaya Kumar Nanda

2020-10-15

KRUSHNA RAM MOHAPATRA

body2020
ORDER : Krushna Ram Mohapatra, J. 1. Due to outbreak of COVID-19, this matter is taken up through Video Conferencing. 2. The petitioner in this CMP assails the order dated 28.08.2018 (Annexure-2) passed by learned District Judge, Jharsuguda in C.S. (Guardianship) Case No. 05 of 2015, whereby learned District Judge allowed the petition filed by the opposite party no. 1, namely, Ajaya Kumar Nanda (petitioner therein) to take his son (Rihan Kumar Nanda) to his custody and directed the petitioner and proforma opp. parties 2 and 3 to give Rihan Kumar Nanda (for short 'the child') to the custody of opposite party no. 1 within one month from the date of the said order. 3. Short narration of the fact necessary for proper adjudication of the case is that the opposite party no. 1 married the second daughter of the petitioner, namely, Lipika, on 05.12.2013 as per the Hindu Rights and Custom. After marriage, she was living with the opposite party no. 1 at Jharsuguda. Out of their wedlock, they were blessed with a male child, namely, Rihan Kumar Nanda, on 26.09.2014. But, unfortunately, the wife (Lipika) of opposite party no. 1 died on 03.10.2014 at District Headquarters Hospital, Jharsuguda. After the death of his wife, an F.I.R. was lodged against the opposite party no. 1 by his in-laws, which was registered as Jharsuguda P.S. Case No. 372 of 2014 corresponding to G.R. Case No. 1382 of 2014. Thereafter, the opposite party no. 1 was taken into custody in connection with the aforesaid case and the child (Rihan Kumar Nanda) remained in the custody of the petitioner as well as opposite parties 2 and 3, who are his maternal grandparents and maternal uncle respectively. After being released on bail, the opposite party no. 1 filed a petition under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act'), which was registered as C.S. (Guardianship) Case No. 05 of 2015 and learned District Judge, Jharsuguda has passed the impugned order. 4. Mr. Mishra, learned counsel for the petitioner submits that there is no dispute to the fact that opposite party no. 1 is the natural guardian of the child. 4. Mr. Mishra, learned counsel for the petitioner submits that there is no dispute to the fact that opposite party no. 1 is the natural guardian of the child. But, taking into consideration the facts and circumstances of the case and the welfare of the child, who is more comfortable with the maternal grandparents and is accustomed to that surrounding, learned District Judge ought to have dismissed the petition filed under Section 6 of the Act. The welfare of the child can be best achieved by the maternal grandparents. There is no allegation that the child is being ill-treated or there is any deficiency with the maternal grandparents in taking care of the child. The Child is 6 (six) years old at present and is pursuing his studies in Nursery at Shemrock School, Bargarh. Learned District Judge after appearance of the petitioner and proforma opposite party nos. 2 and 3 without making any endeavour for a conciliation, proceeded to hear the matter on merit. It is the duty of the Court to make an endeavour for conciliation of the dispute, which is a sine qua non in all family disputes. He further submits that the petitioner as well as proforma opposite parties 2 and 3 on receipt of the notice had entered appearance in the case through their Advocate. But, to their misfortune, he neither took any step nor intimated the position of the case to them for which they could neither file their written statement nor could adduce evidence on their behalf. The opposite party no. 1 has only examined himself in the case as P.W. 1 and he was cross-examined by their learned counsel. As such, the petitioner and opposite parties 2 and 3 have not been given reasonable opportunity to defend their case before learned District Judge. Learned District Judge, Jharsuguda without considering the facts and circumstances of the case and without taking into consideration the welfare of the child has passed the impugned order, which is not sustainable in the eyes of law. He further submits that learned District Judge misconstrued the suggestion put by learned counsel for the petitioner as well as opposite parties 2 and 3 to the opposite party no. 1 (P.W. 1) in his cross-examination to which the opposite party no. 1 replied that he has no objection, if the child (Rihan) visits his maternal grandfather's house on festival occasions. 1 (P.W. 1) in his cross-examination to which the opposite party no. 1 replied that he has no objection, if the child (Rihan) visits his maternal grandfather's house on festival occasions. That can never be construed to be the concession of the petitioner as well as proforma opposite parties 2 and 3 to give custody of the child to the opposite party no. 1. Thus, the finding of learned District Judge to the effect that the present petitioner as well as opposite parties 2 and 3 have no objection to give the custody of the child to his father (opposite party no. 1) is without any basis. There is no material on record to support such a finding. Hence, the impugned order is not sustainable in law and the same is liable to be set aside. 5. Mr. Ragada, learned counsel for the opposite party no. 1 refuting the submission made by Mr. Mishra, learned counsel for the petitioner vehemently argued that the opposite party no. 1 being the father of the child is his natural guardian should take custody of the child and he can take best care of the child. There is also no allegation by the petitioner as well as opposite parties 2 and 3 to the effect that the opposite party no. 1 cannot maintain and take care of the child and welfare of the child cannot be achieved, if the custody of the child is given to him. He further submitted that the petitioner as well as opposite parties 2 and 3 although entered appearance did not file their written statement. They also did not examine any witness on their behalf. Thus, the averments made in the petition under Section 6 of the Act remained unchallenged. The opposite party no. 1 by examining himself as P.W. 1 has discharged the initial burden of proof. On the other hand, learned counsel appearing for the present petitioner as well as opposite parties 2 and 3 (opposite parties 1 to 3 before learned District Judge) had put a suggestion to the opposite party no. 1, who was examined as P.W. 1 regarding visiting right of the child to his maternal grandparents during festivals to which P.W. 1 accepted. All these circumstances go to show that the petitioner and opposite parties 2 & 3 had initially agreed to give the custody of the child to opposite party no. 1, who was examined as P.W. 1 regarding visiting right of the child to his maternal grandparents during festivals to which P.W. 1 accepted. All these circumstances go to show that the petitioner and opposite parties 2 & 3 had initially agreed to give the custody of the child to opposite party no. 1, but subsequently changed their mind after passing of the impugned order and have filed this CMP. In that view of the matter, the impugned order needs no interference more particularly when the custody of the child is to be given to his natural guardian, namely, the father. 6. Taking into consideration the submissions of learned for the parties and the materials available on record, more particularly on perusal of the impugned order, it appears that the basic requirement while determining the issue of custody of child i.e. the welfare of the child, has not been considered and discussed by learned District Judge while adjudicating the matter. The finding to the effect that the petitioner as well as opposite parties 2 and 3, who are maternal grandparents and maternal uncle respectively of the child, have no objection to give the custody of the child (Rihan) to the opposite party no. 1, is without any basis and without any supporting material. Moreover, the testimony of opposite party no. 1, the father of the child, in his cross-examination that he has no objection for visit of his son (Rihan) to the house of his maternal grandparents and maternal uncle, cannot be sacrosanct to construe the consent or 'no objection' of the petitioner as well as opposite parties 2 and 3 to give the custody of the child to the opposite party no. 1. It further appears that learned District Judge without considering the materials and evidence on record has passed the impugned order. Since the impugned order has been passed without considering the primary requirement of welfare of the child and the findings are without any material and evidence on record, the same is not sustainable in law. 7. On perusal of the petition filed under Section 6 of the Act (Annexure-1) by the opposite party no. 1, it reveals that although there are averments to the effect that the opposite party no. 7. On perusal of the petition filed under Section 6 of the Act (Annexure-1) by the opposite party no. 1, it reveals that although there are averments to the effect that the opposite party no. 1 is staying in a joint family with his parents, brother, his wife and cousins, the same is not sufficient for consideration of his prayer for taking custody of the child in absence of any averment with regard to welfare of the child. Thus, the contention of Mr. Ragada to the effect that the opposite party no. 1 has discharged the initial burden of proof, is not sustainable. 8. In view of the discussions made above, the impugned order under Annexure-2 is set aside and the matter is remitted back to the learned District Judge, Jharsuguda to consider the matter afresh in accordance with law and pass a reasoned order giving opportunity of hearing to the parties concerned within a period of six months from the date of first appearance of the parties. Parties may, if so advised, move learned District Judge for filing pleadings/additional pleadings as well as to adduce further evidence. In that event, learned District Judge, Jharsuguda shall do well to consider the same and pass necessary orders in accordance with law. 9. With the aforesaid observation and direction, this CMP is disposed of. Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court's Notice No. 4587 dated 25.03.2020.