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 awarding custody of the minor child to the father, the Orissa High Court held that the Family Court was wrong to dismiss his custody petition on technical grounds. The Court observed that the plea was rejected solely because the father had not produced or formally proved his wife’s death certificate and the child’s birth certificate.
The appeal was preferred under Section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardians and Wards Act, 1890, by the appellant—the child’s natural father—assailing the Family Court’s judgment.
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.”
Factual Background
The appellant instituted a Guardian Miscellaneous Case before the Family Court at Bhadrak, seeking a declaration that he is the lawful guardian and custodian of the respondent minor, along with a grant of custody. It was specifically averred that the appellant and the deceased were married in 2019 and had been living together harmoniously after the marriage. Subsequently, while the wife was residing at her parental home, she died due to cardiac arrest. Following her death, the minor child remained in the custody of the respondent, the maternal grandfather, who allegedly obstructed the appellant from meeting the child.
It was further contended before the trial court that the second respondent was merely 10 months old and was being denied adequate nutrition and a normal upbringing. Despite repeated efforts, the maternal grandfather allegedly refused to allow the appellant to reside with or care for the child, leaving the appellant with no option but to approach the court seeking guardianship.
Reasoning
The Bench noted that following his mother’s death, when the child was only a few weeks old, the second respondent had been separated from the appellant-father and had since been living with his maternal grandfather. The Court observed that the maternal grandfather could not claim a superior right over the appellant, who is the child’s natural guardian. It further recorded that there were no allegations of matrimonial discord during the mother’s lifetime, nor any complaints of ill-treatment of the wife or the child. Additionally, there was no claim that the appellant-father was unemployed or lacked education.
The Bench observed that there was nothing on record to detract from the appellant’s legal rights as the natural guardian or from his bona fide desire to seek custody of his child. Noting that the child would now be around five and a half years old, the Court held that the appellant-father’s right to custody could not be questioned, and that denying him custody would unjustly deprive both the child and the father of their rightful bond of love and affection.
“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 maternal grandfather to hand over custody of the minor child to the appellant, while granting him liberty to visit and meet the child at the appellant’s residence.
