Orissa High Court
Babu Charan Patra vs Nityananda Patra And on 5 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.104 of 2018
Babu Charan Patra .... Appellant
-Versus-
Nityananda Patra and .... Respondents
another
Advocates appeared in this case :
For Appellant : Mrs. Sujata Jena, Advocate
For Respondent : Mr. Sisir Kumar Purohit, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
JUDGMENT
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Date of hearing and Judgment: 5th December, 2023
---------------------------------------------------------------------------- ARINDAM SINHA, J.
1. The appeal is directed against judgment dated 23rd June, 2018 made by the family Court dismissing the father's petition for custody of his son with direction that the father has right to see the minor with previous notice to respondents (maternal grandparents) and the Page 1 of 8 child be allowed to use telephone or video conferencing with his father while living with his grandparents on interval of 15 days.
2. Ms. Jena, learned advocate appears on behalf of appellant- father. Mr. Purohit, learned advocate appears on behalf of respondents. We have heard the learned advocates. We have also perused impugned judgment and the evidence adduced in the Court below.
3. Annexed to the appeal papers is judgment dated 28th March, 2023 made by the learned single Judge in CRLMC no.2089 of 2017 (Babu Charan Patra v. State of Orissa and another). The judgment was made on the criminal Misc. case of petitioner in connection with G.R. case no.205 of 2016 pending in the file of Sub-Divisional Judicial Magistrate, Gunupur. Petitioner thereby sought to invoke inherent power of the Court under section 482 in Code of Criminal Procedure, 1973 for quashing the case.
4. Facts as appearing from the judgment are that an FIR was registered on 12th October, 2016, after death of the child's mother on 3rd August, 2016. Police case was started under, inter alia, section 304-B Indian Penal Code, 1860. Charge-sheet was submitted under sections 498-A and 306 in Indian Penal Code, 1860. Case made out by petitioner before the learned single Judge was that the death was by suicide. UD case no.12 dated 3rd August, 2016 was registered and MATA no. 104 of 2018 Page 2 of 8 in course of the enquiry, involvement of petitioner was neither alleged by respondent no.1 (informant) nor suspected. After two months complaint was made, registered as FIR dated 12th October, 2016 and the case initiated. Hence, there was prayer for quashing of it. The learned single Judge found substance in the contention and quashed the criminal case. Respondents did not take the matter further. We, therefore, have reason to believe that death of the child's mother was by suicide.
5. Moving on we find from the written statement of respondent no.1 that contention therein was, petitioner cannot be a proper person to be custodian of the minor child as he is a Government servant with high rank and corresponding burden of work. Further, he being unmarried, is not in a position to take care of the minor child. We reproduce paragraph 5 from the written statement.
"5. The Respondent submit that, the minor child is now of 3 years old and the petitioner is being charged for murder case of his wife, he cannot be a proper person to be custodian of the minor child. Further the petitioner is Govt. servant and holding a higher rank with all the burden and obligations and he being Govt. employee moving different places in order to discharge his Govt. duties, and further he being unmarried, he is not in a position to take proper care of the minor child and as such MATA no. 104 of 2018 Page 3 of 8 he cannot be the proper person to be custodian of the minor child. If the petitioner will be appointed as the custodian of the minor child, than the future life of the minor child will be in darkness & danger and it cannot be undermined."
(emphasis supplied)
6. First contention of the father carrying lot of responsibility as comes with being a Government employee is not one that is a disqualification for him to have custody. On second contention, in the record is copy of certificate of marriage certifying that petitioner had got married to Smt. Puspalata Mohalik on 4th February, 2023. On query from Court Mr. Purohit submits, he had disclosed the marriage certificate by affidavit dated 19th July, 2023.
7. The learned Court below considered judgment of the Supreme Court in Githa Hariharan v. Reserve Bank of India, reported in AIR 1999 SC 1149. Conclusion in the judgment by one learned Judge was agreed with by the other two learned Judges, who added their own reasons. The question before the Supreme Court was that the definition in provision by clause (a) under section 6 in Hindu Minority and Guardianship Act, 1956 offended article 14 in the Constitution of India. The conclusion was declaration of law on interpretation of word 'after' used in the provision to not necessarily mean after death of the father. It was said, it could also mean 'in MATA no. 104 of 2018 Page 4 of 8 absence of father'. The judgment is inapplicable to the facts because in this case the mother is not there. In absence of the mother, the father, recognized by law as natural guardian, is seeking custody.
8. It appears from order-sheet that coordinate Bench had earlier on 4th July, 2022 been informed that respondent no.2 (maternal grandmother) was staying separately with the child in the address reproduced below.
"Ushakiran Patra C/o-Kalyani Kumari Patra, Flat No.103, MR Niwas, 29/C-29-C near MR Grocery, Kaggadasapura, Bangaloroo, Karnataka-760093."
Subsequently, by order dated 6th February, 2023 another coordinate Bench considered the question of custody as may be made on outcome of aforesaid proceeding under section 482, Code of Criminal Procedure. We reproduce below paragraphs 3 to 5 from said order.
"3. Mr. Das, learned counsel has apprised us that the appellant has been charge-sheeted in a case of abetment of suicide of his wife and also under Section-498-A of the IPC.
4. On the other hand, Ms. Sujata Jena, learned counsel appearing for the appellant has submitted that the Police report based on which the cognizance was MATA no. 104 of 2018 Page 5 of 8 taken has been challenged. Consequently, the challenge has also been made against the order of cognizance.
5. We are of the view that the outcome of the said proceeding under Section-482 of the Cr.P.C. might have bearing on the question of custody. We may wait for some time."
(emphasis supplied)
9. Now that the criminal miscellaneous case has been dealt with on aforesaid judgment dated 28th March, 2023 the position is, it cannot be said petitioner is laboring under a charge of abetment to suicide. There is no such impediment for him to obtain custody of his son, he being the natural guardian. Mr. Purohit points out petitioner had applied for custody two and half years after the son had been in custody of his maternal grandparents. We reiterate that facts urged on behalf of petitioner in the criminal miscellaneous petition, for quashing of the criminal proceeding, were accepted by the learned single Judge inasmuch as the complaint/FIR for initiation of the subsequent police case was found liable to be and quashed. Petitioner having lost his wife, at a time when her grandmother was staying with her in petitioner's place of residence, he having to deal with the consequences including police investigations thereafter and the child's custody being with his in-law's may not have presented danger to him of loss of custody. We are satisfied that the time taken MATA no. 104 of 2018 Page 6 of 8 of two and half years for him to approach the Court for custody is not fatal to his claim for custody. What apparently has been lost sight of is that the father, natural guardian of the child stood deprived of custody by respondents without them having been declared guardians, neither under Hindu Minority and Guardianship Act, 1956 nor Guardians and Wards Act, 1890. There being no proceeding under Hindu Marriage Act, 1955, section 26 therein had or has no application to the case. The father was and is entitled to custody of his son as the natural guardian.
10. So far as welfare of the child is concerned, it is true that there has been long association of him with at least his maternal grandmother. In this time he has not had any real contact with his father. A son not being able to know his father and especially in the impressionable years is also not to his welfare. Unfortunately, the son has been visited with the consequences of death of his mother. He has his father. It is in his best interest to be with his father and thereby grow up to face the world.
11. We set aside impugned judgment and direct custody of the son to be with his father. However, we make it clear that there cannot be abrupt removal of the son from the present school of study. On petitioner obtaining admission for his son in a good school, petitioner will bring back his son to stay with him. For the purpose respondents MATA no. 104 of 2018 Page 7 of 8 will make available to petitioner the child's school report cards and relevant documents. Petitioner has liberty to produce our judgment to the Bengaluru school and the school(s), where petitioner intends to seek admission for his son. Petitioner will produce documents of admission in respect of the son to respondents. They will cooperate in handing over custody of the child to petitioner.
12. The appeal is allowed and disposed of.
(Arindam Sinha) Judge (S.S. Mishra) Judge Jyoti Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Reason: Authentication Location: HIGH COURT OF ORISSA Date: 06-Dec-2023 13:20:14 MATA no. 104 of 2018 Page 8 of 8