Prayer For Custody Of Child Can’t Be Denied On Technical Grounds For Not Producing Wife’s Death Certificate & Child’s Birth Certificate: Orissa High Court
The Appeal before the Orissa High Court was preferred under Section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardians & Wards Act, 1890, by the natural father of the Respondent child.
While granting custody of a minor child to a father, the Orissa High Court has held that the lower Court was not justified to reject the father’s prayer for custody of the child on technical grounds for not producing and proving the death certificate of his wife as well as the birth certificate of the child.
The Appeal before the High Court was preferred under Section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardians & Wards Act, 1890, by the Appellant, who is the natural father of the second Respondent, challenging the Judgment of the Judge, Family Court.
The Single Bench of Justice Sanjay Kumar Mishra held, “Keeping in view the legal provisions under the Hindu Minority and Guardianship Act, 1956, the welfare of the child , the right of the father to have his custody and after consideration of all the facts and circumstances of the case detailed above, this Court finds that the learned Court below was not justified to reject such prayer for custody of the child on technical ground for not producing and proving the death certificate of Appellant’s wife as well as birth certificate of the Respondent No.2.”
Advocate P.K. Sahoo represented the Appellant.
Factual Background
The Appellant preferred a Guardian Misc. Case before the Family Court, Bhadrak, to be declared as the legal guardian and custodian of the respondent child. The appellant also sought the custody of the child. It was specifically pleaded that the Appellant and the deceased are husband and wife. After their marriage was solemnized in 2019, both of them were living as husband and wife peacefully. When the wife had been to her paternal house, she expired there due to cardiac arrest. Since then, the minor child was with the Respondent maternal grandfather. It was alleged that the maternal grandfather did not allow the appellant father to see his minor child.
It was also pleaded before the Court below that the second respondent was a child of 10 months and he had been deprived of getting nutritious food and unable to lead his normal life. In spite of repeated requests, the grandfather was not allowing the Appellant to remain with the child. This compelled the Appellant to knock the door of the Court seeking the relief of guardianship of the child.
Reasoning
The Bench noted that the second respondent, after the death of his mother, when he was an infant and only a few weeks old, had been separated from the Appellant-father. Since then, he had been living with his maternal grandfather, who, as per the Bench, could not have a better claim than the Appellant-father, who is the natural guardian. It was noticed that there was no allegation of any matrimonial dispute when the mother of the child was alive, nor a complaint of abuse was perpetrated against the wife or son. There was no allegation that the Appellant-father, who is the natural guardian of the second Respondent was unemployed and uneducated.
There was also nothing standing against his legal rights; as a natural guardian, and a legitimate desire to have the custody of his child. The Bench found that the child would be around 5 & 1/2 years old by now. Holding that the entitlement of Appellant-father to the custody of the child could not be disputed, the Bench held that if no custody is granted to the Appellant, the Court would be depriving both the child and the father of each other's love and affection to which they are entitled.
“The father, being the natural guardian of the minor child, is having a legal right to claim the custody of the child, once the child attains the age of 5 years in terms of Section-6 of the Hindu Minority and Guardianship Act, 1956. However, after the death of his wife, the entitlement of Appellant-father to the custody of child cannot be disputed.Hence, this Court is of the considered view that, in the facts and circumstances of the present case, the father, being the natural guardian, after the death of his wife, was justified to approach the learned Court below for guardianship of the Respondent No.2”, the Bench stated.
Allowing the appeal, the Bench directed the grandfather to hand over the custody of the minor child to the Appellant. The Court, however, allowed the maternal grandfather to meet the minor child at the appellant’s residence.
Cause Title: A v. B ( Case No.: GUAP No.03 of 2022)