Orissa High Court
Brahmananda Khillar vs Sudam Barik on 21 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
TRP (C) No.89 of 2022
An application under Section -24 of the Code of Civil Procedure.
1.Brahmananda Khillar
2.Basanta Khillar
3.Kalandi Khillar .... Petitioners
Versus
Sudam Barik ... Opposite Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr. S.K.Pattanaik, Advocate
For Opposite Party : Mr.J.K.Mohapatra, Advocate
CORAM:
JUSTICE SAVITRI RATHO
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Date of Judgment:21.10.2022
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Savitri Ratho, J. I have heard Mr.S.K.Pattanaik, learned counsel for the
petitioners and Mr.J.K.Mohapatra, learned counsel for the opposite
party through hybrid mode.
2. This transfer application under Section 24 of C.P.C. has been
filed by the petitioners for transfer of Guad Case No.21 of 2021 filed
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by the opposite party- father of the child under Section-7 of the
Guardians and Wards Act read with Section 26 of the Hindu Marriage
Act in the Court of the learned Judge, Family Court, Keonjhar, to the
Court of learned Judge, Family Court, Dhenkanal.
3. Mr. Pattanaik, learned counsel for the petitioners submits that
the opp. party is the son-in-law of petitioner No.3 and Petitioner No.1
and 2 are the sons of Petitioner No.3. Marriage of the daughter of
Petitioner No 3 and the opp. party had been solemnized on 27.5.2014
and a son was born to them on 28.8.2018. Mother of the child
(daughter of petitioner No.3) expired on 3.9.2019 and during the
obsequies of his wife, the opp. party left the child with the petitioners
as he did not want the child. Since then, the petitioners are looking
after the child with care and affection. The child is now studying in a
school at Dhenkanal. The opp. party has married for the second time.
Petitioner No.3 is aged about 60 years and the distance between
Dhenkanal and Keonjhar is about 300 K.Ms., for which it would be
inconvenient for the petitioners to attend the case at Keonjhar. He
further submits that as the child is staying in Dhenkanal, the case
should have been filed in Dhenkanal.
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4. Counter affidavit has been filed by the opposite party opposing
the prayer for transfer. It has been stated in the affidavit that opp.
party and Kuni Khillar had been blessed with a son on 28.08.2018.
After the death of Kuni Khillar, his wife on 03.09.2019 when she was
being taken to the hospital for her second delivery, the present
petitioners with mala fide intention forcibly took away the child - his
son who was aged about one year then, from his lawful custody on
04.09.2019. Thereafter, on the intervention of the middlemen, an
agreement was executed on 14.9.2019. But as they did not hand over
the child, the opposite party filed an application under Section 97 of
the Cr.P.C. before the learned S.D.J.M., Anandapur for immediate
rescue of his minor son, who had been illegally confined by the
petitioners. Vide order dated 5.12.2019, the learned S.D.J.M. directed
the I.I.C., Ghasipura P.S. to conduct an enquiry and submit a report.
He has married for the second time and his wife also wants to look
after the child. The distance between the village of the petitioners and
the Court at Keonjhar is about 124 K.Ms., and not 300 K.Ms as stated
in paragraph-9 of the transfer petition to impress this Court. As
attendance of the petitioners on each date is not necessary and
petitioner Nos. 1 and 2 can contest the case without petitioner No.3.
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The opp party being the natural guardian is entitled to the custody of
the child and the petitioners should not be allowed to take advantage
of the wrong committed by them.
5. Considering the submissions made by the parties, the
provisions of the Guardians and Wards Act and particularly the fact
that the child whose custody is sought for is staying at Dhenkanal
since three years and is now enrolled in a school in Dhenkanal, the
prayer for transfer is allowed.
6. The learned Judge, Family Court Keonjhar is directed to
transfer the records of Guad Case No.21 of 2021 (Sudam Barik vs.
Brahmananda Khillar and others) to the Court of the learned Judge,
Family Court Dhenkanal by 04.11.2022. The parties undertake to
appear in the Court of the learned Judge, Family Court, Dhenkanal
on 14.11.2022 who is requested to take steps for expeditious disposal
of the proceeding.
7. The TRP (C) is accordingly allowed.
8. Urgent certified copy of this order be granted on proper
application.
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 21st October, 2022/Bichi
