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 the father, the Orissa High Court held that the Family Court was unjustified in rejecting his custody plea on technical grounds, merely because he had not produced or proved his wife’s death certificate and the child’s birth certificate.
The appeal was filed under Section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardians and Wards Act, 1890, by the appellant—who is the natural father of the child—challenging the judgment of the 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.”
Factual Background
The appellant filed a Guardian Miscellaneous Case before the Family Court, Bhadrak, seeking a declaration as the legal guardian and custodian of the respondent child, along with custody. It was specifically pleaded that the appellant and the deceased were husband and wife and had been living together peacefully after their marriage in 2019. While the wife was staying at her parental home, she passed away due to cardiac arrest. Thereafter, the minor child remained in the care of the respondent, the maternal grandfather, who allegedly prevented the appellant from meeting his child.
It was further pleaded before the trial court that the second respondent was only 10 months old and was being deprived of proper nutrition and a normal upbringing. Despite repeated requests, the maternal grandfather did not permit the appellant to stay with the child, which compelled the appellant to approach the court seeking guardianship of the child.
Reasoning
The Bench observed that after the death of his mother, when he was only a few weeks old, the second respondent had been separated from the appellant-father and had since been residing with his maternal grandfather. The Court noted that the maternal grandfather could not have a superior claim 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 abuse against the wife or the child. There was also no allegation that the appellant-father was unemployed or uneducated.
The Bench noted that there was nothing on record to undermine the appellant’s legal rights as the natural guardian or his legitimate desire to have custody of his child. It observed that the child would now be about five and a half years old. Holding that the appellant-father’s entitlement to custody could not be disputed, the Bench stated that denying him custody would deprive both the child and the father of the mutual 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 maternal grandfather to hand over custody of the minor child to the appellant, while permitting the grandfather to meet the child at the appellant’s residence.