Orissa High Court
Smt. Urmilla Sahu & Others vs Sri Santosh Kumar Sahu on 25 August, 2023
A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.3 of 2019
An application under Section 19 of Family Courts Act, 1984.
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Smt. Urmilla Sahu & Others ........ Appellants
-Versus-
Sri Santosh Kumar Sahu ........ Respondent
For Appellants : Mr. R.K. Mohapatra,
Advocate
For Respondent : Mr. N. Jujharsingh,
Advocate
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWANATH RATH
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 19.07.2023 Date of judgment: 25.08.2023
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M.S. Sahoo, J By filling the present appeal under Section 19 of the Family
Courts Act,1984 the appellants have challenged the judgment and
order dated 21.11.2018 passed by the learned Judge, Family
Court, Berhampur in Civil Proceeding-C.P. No.271 of 2015.
The said proceeding was filed under Section 6 of the Hindu
Minority and Guardianship Act, 1956 (hereinafter the 'Act, 1956'
for short) by the present respondent-father of the minor girl child
(name of the girl is being withheld), seeking custody of the girl
child who has been staying with her maternal grandmother and
maternal uncles, in particular the respondent no.2 and his wife.
The appellants herein are the respondents before the
learned trial court; appellant no.1 is the maternal grandmother of
// 2 //
the minor child; respondent nos.2 to 6 before the learned trial
court are the appellant nos.2 to 6 in the present appeal are the
maternal uncles of the child.
2. The operative portion of the order passed by the learned
Judge, Family Court is quoted herein:
"The case, be and the same, is decreed on contest,
but without costs.
The petitioner is hereby declared as the natural
Guardian of the child ...
The respondents are directed to hand over the child
to the petitioner within one month of this order, failing
which the petitioner has liberty to bring the child to his
custody through the process of the Court.
The petitioner is also directed to allow the
respondents to see the child as and when they required
the same."
The facts in brief :
3. As per the pleadings of the parties before the learned court
below that is also reflected in the impugned judgment, the
undisputed facts leading to the Civil Proceeding before the learned
Judge, Family Court and thereafter filing of the present appeal are:
that on 19.04.2009 the daughter of the present appellant no.1 late
Sasmita Sahu married respondent as per Hindu rites and
customs. On 08.03.2010, the girl whose custody is the subject-
matter of dispute was born from their wedlock. [The true copy of
the Birth Certificate was exhibited and marked as Ext."2' in the
proceeding before the learned trial court]. On 28.09.2011, the wife
of present respondent namely, Sasmita Sahu died, allegedly, by
committing suicide in the house of the present respondent (True
copy of the Death Certificate was exhibited and marked as Ext.3 in
the learned trial court). It is further contended that on 28.09.2011,
due to unnatural death of Sasmita Sahu, U.D. Case No.27 of 2011
was registered at Bada Bazar Police Station, Berhampur on receipt
of a Medico Legal Case Report from Medical Out-Post, Berhampur
and on 15.05.2015, Police submitted its Final Report vide F.F.
No.27 dated 15.05.2015.
// 3 //
3.1 Further it has been stated by the parties that visualizing the
future prospect and maintenance of the minor girl child, it was
unanimously decided amongst the family members and other local
gentries known to both the parties, to let the child remain in the
custody of present appellants, who are maternal grandmother and
maternal uncles of the girl child, in terms of a written document
dated 04.10.2011, by incorporating some terms and conditions
therein. [The true copy of the agreement dated 14.10.2011 was
exhibited and marked as Exhibit-A in the proceeding before the
learned trial court.] It is further contended that since 28.09.2011,
minor girl child is residing with her maternal grandmother and
maternal uncles.
Exhibits before the learned Family Court:
4. Before the learned trial court that the respondent-petitioner
and his sister were examined as P.Ws.1 & 2 respectively. The
petitioner exhibited three documents such as Ext.1-Birth
Certificate of the deceased mother of the child, Ext.2-Birth
Certificate of the minor girl and Ext.3-Death Certificate of the
mother of the child. The present appellant no.1 as D.W.2 was
examined and appellant no.2 as D.W.1. Defendants exhibited
three documents such as Ext.A-photo copy of the agreement dated
14.10.2011, Ext.B-photo copy of Gift Deed dated 22.05.2013 and
Ext. C-photo copy of school progress report of minor girl.
Statements in evidence before the learned Family Court :
5. It is stated that the present respondent has never visited his
in-law's houses after the death of his wife i.e., the mother of the
minor daughter so also has never paid a single farthing in favour
of his daughter till date. This fact is established from the evidence
of present respondent, who was examined as P.W.1 in the
proceeding before the lower court, more particularly it is found at
the last portion of para-4 of the cross-examination of P.W.1
(respondent), recorded on 23.08.2017 by the learned trial court.
// 4 //
It is further contended that evidence of present appellant
nos.1 and 2 as D.W.2 & 1 before the learned trial court would go to
show that the minor girl child has been residing with her maternal
grandparents and maternal uncles since 04.10.2011 after her
mother's death and the respondent-father has not complied with
the terms of the agreement-Ext.A.
Submissions of the appellants :
6. Heard Mr. Rajesh Kumar Mohapatra, learned counsel for
the appellants and the submissions are summarized herein:
The girl child is residing and grown up with her matrimonial
grandmother particularly with appellant no.2, his wife and their
two sons leading a happy and comfortable life with all facilities
required for her growth and well being.
6.1 The child at present is prosecuting her studies in Class-
VIII, in the Government Girls High School, Berhampur and she is
doing well in her studies under the care and guidance of the
appellants [School Progress Report is marked as Ext.C before
learned Family Court]. After death of the mother of the child at
the house of the respondent, respondent has never visited the girl
child nor has ever paid a single farthing in favour of his daughter.
Such fact is established from the paragraph-4 of the cross-
examination of the respondent dated 23.08.2017 as P.W.1. The
terms of agreement for welfare of the girl child dated 14.10.2011
(Ext.A) has not been complied with by the respondent. The
appellants have complied the terms of agreement in the interest of
the girl child by executing a gift deed giving land Ac.0.023, dated
22.05.2013 (Ext.B).
6.2 It has not been the case of the respondent-petitioner before
the learned Judge, Family Court that there has been any lack of
care for the minor child, any ill-treatment meted out to her by the
adoptive parents with whom she is staying for the last about
thirteen years since when she was aged about 18 months. As per
// 5 //
the pleadings of the respondent-petitioner and evidence, there is
no material to show any difficulties for the girl child like ill-
treatment, lack of care, lack of education, lack of proper
upbringing to require any change of custody.
6.3 As per the law laid down by the Hon'ble apex Court in Nil
Ratan Kundu and another v. Abhijit Kundu and another :
(2008)9 SCC 413 : 2008 AIR SCW 5769, "positive test" that
such custody would be in the welfare of the child is material and it
is on that basis, the learned Judge, Family Court should have
exercised the power to refuse transfer of the custody of the minor
from the maternal uncle and aunt in favour of the father. It is
further submitted that as per the law down in Nil Ratan Kundu
(supra) 'negative test' that the father is "not unfit" or disqualified to
have custody of his daughter, is not relevant.
Submissions on behalf of the respondent-petitioner
7. Heard Mr. Nilakantha Jujharsingh, learned counsel for the
respondent-petitioner and his submissions are noted herein :
The background facts as noted above, the exhibits and the
evidence before the learned Judge, Family Court in the Civil
Proceeding No. 271 of 2015 remain undisputed. The learned
counsel for the respondent reiterated the said facts fairly, not
entering into dispute over the same.
7.1 However, defending the judgment and order of the learned
Judge, Family Court it is submitted that the respondent-petitioner
approached the appellants on several occasions to return the
minor daughter to his custody. The respondent-petitioner being
the father as well as the natural guardian of the girl child not
having been successful in getting custody, filed application under
Section 6 of the Act, 1956 seeking custody of the child. It was not
disputed by the present appellants having custody of the child, in
the proceeding before the learned Judge, Family Court that the
// 6 //
respondent-petitioner is the father/natural guardian of the minor
girl child.
7.2 It is further submitted by the learned counsel for the
respondent that the judgment and order passed by the learned
Judge, Family Court is just and proper and is not liable to be
interfered with by this Court in appeal.
Case law relied on by the appellants :
8. Nil Ratan Kundu and another v. Abhijit Kundu and
another : (2008)9 SCC 413 : 2008 AIR SCW 5769;
Smt. Anjali Kapoor v. Rajib Baijal : AIR 2009 (SC)
2821.
Case law relied on by the respondent-petitioner
9. Smriti Madan Kansagra v. Perry Kansagra : (2021)
12 SCC 289.
Issues framed by the learned trial court :
10. Based on the pleadings and contentions raised before it, the
learned trial court had framed the following issues :
"Considering the rival contention of the parties, the
following issues are coped up for determination :
(i) Whether the petitioner deserved to get custody
of his minor daughter ... ?
(ii) Whether the respondents have any right to
keep the child with them ?
(iii) What arrangement would serve the best
interest of the child ... ?"
[Name of the child not mentioned in the
quoted portion]
The above issues have been answered by the learned court
in favour of the respondent-petitioner as quoted in paragraph-2
above, giving rise to the challenge by the appellants-respondents.
// 7 //
Analysis by this Court and Conclusion :
The learned counsel for the parties have filed the written
notes of submission after exchanging copies of the same. We have
gone through the written notes of submissions and the available
lower court records.
11. Sections, 6, 7, 8 and 13 of Hindu Minority and Guardianship
Act, 1956 since relevant are quoted herein for reference :
"6. Natural guardians of a Hindu minor.--The natural
guardians of a Hindu minor; in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are--
(a) in the case of a boy or an unmarried girl--the
father, and after him, the mother: provided that the
custody of a minor who has not completed the age of five
years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this
section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an ascetic
(yati or sanyasi). Explanation.--In this section, the
expressions "father" and "mother" do not include a step-
father and a step-mother.
7. Natural guardianship of adopted son.--The natural
guardianship of an adopted son who is a minor passes,
on adoption, to the adoptive father and after him to the
adoptive mother.
8. Powers of natural guardian.--(1) The natural guardian
of a Hindu minor has power, subject to the provisions of
this section, to do all acts which are necessary or
reasonable and proper for the benefit of the minor or for
the realization, protection or benefit of the minor's estate;
but the guardian can in no case bind the minor by a
personal covenant.
(2) The natural guardian shall not, without the previous
permission of the court,--
// 8 //
(a) mortgage or charge, or transfer by sale, gift, exchange or
otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five
years or for a term extending more than one year beyond the
date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural
guardian, in contravention of sub-section (1) or sub-
section (2), is voidable at the instance of the minor or any
person claiming under him.
(4) No court shall grant permission to the natural
guardian to do any of the acts mentioned in subsection (2)
except in case of necessity or for an evident advantage to
the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890),
shall apply to and in respect of an application for
obtaining the permission of the court under sub-section (2)
in all respects as if it were an application for obtaining
the permission of the court under section 29 of that Act,
and in particular--
(a) proceedings in connection with the application
shall be deemed to be proceedings under that Act within
the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the
powers specified in sub-sections (2), (3) and (4) of section
31 of that Act; and
(c) an appeal shall lie from an order of the court
refusing permission to the natural guardian to do any of
the Acts mentioned in sub-section (2) of this section to the
court to which appeals ordinarily lie from the decisions of
that court.
(6) In this section, "Court" means the city civil court or a
district court or a court empowered under section 4A of
the Guardians and Wards Act, 1890 (8 of 1890), within
the local limits of whose jurisdiction the immovable
property in respect of which the application is made is
situate, and where the immovable property is situate
within the jurisdiction of more than one such court, means
the court within the local limits of whose jurisdiction any
portion of the property is situate.
xx xx xx
13. Welfare of minor to be paramount consideration.--(1)
In the appointment of declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the
welfare of the minor."
[Emphasis supplied]
// 9 //
Section 6 as quoted above defines natural guardian and in
our considered opinion, Section 13 of the Act, 1956 makes the
legislative intent abundantly clear that while deciding guardianship
of a minor, the welfare of minor shall be the paramount
consideration for a court.
Interaction of this Court with the minor girl child, the
appellant no.2 and the respondent-petitioner :
12. In view of the fact that the minor girl child is aged about 14
years, being old enough to form an intelligent preference or
judgment, in order to ascertain her wishes as to with whom she
wants to stay, this Court after deliberations with the learned
counsel appearing for the parties, with consent of the parties,
directed for presence of the minor girl child along with appellant
no.2 and his wife with whom she is presently staying and also
directed for the presence of the respondent-petitioner along with
his wife. Regarding the interaction with the girl child, appellant
no.2 and his wife, respondent no.2 and his wife which took place
on 19.07.2023, this Court passed the order as quoted herein :
"Order No.13 dated 19.07.2023
1. Learned counsel for the parties were heard on
10.07.2023 and after hearing was concluded, the matter
was posted for pronouncement of judgment.
2. Thereafter on perusal of the case brief it was felt
that certain further clarifications are necessary
particularly the child whose custody is subject-matter of
the present dispute, being 14 years of age, it was felt that
interaction with child was necessary to arrive at a just
conclusion. Accordingly the matter was directed to be
listed on 12.07.2023 by order dated 11.07.2023.
3. On 12.07.2023 learned counsel for the parties
being present were heard at some length and it was
directed the minor girl along with the persons in whose
custody she is living at present, i.e.,Shri Krushna
Chandra Sahu (Appellant no.2) being maternal uncle and
his wife being the maternal aunt, should remain present
on 14.07.2023 for having interaction with the Court.
Respondent along with his wife present was also asked
to remain present on the said date on 14.07.2023.
4. On 14.07.2023 a prayer was made on behalf of the
respondent that since the respondent is observing the
// 10 //
obsequies after he unfortunately lost his mother, the
matter may be adjourned to another date. The parties
agreed for listing the matter on 19.07.2023.
5. Today on 19th July the matter is taken up in
chambers. The girl (whose name is not being mentioned),
interacted with the Court in chambers in extenso. She is
found to be well aware and conscious of the
surroundings, intelligent and perceptive for her age, her
date of birth being 8.3.2010. She narrated that she is
studying in Class-IX in Govt. Girls School, Berhampur.
She referred to the respondent no.2 as 'Baba' and wife of
respondent as 'Maa'. Further she stated her brothers to
be Uddhaba and Laxminarayan who are sons of
respondent no.2. She stated that recently on her attaining
puberty, a function was arranged as is the custom, by
her parents, i.e., appellant no.2 and his wife. She referred
to appellant no.1 as 'Jejema' (paternal grandmother). She
stated that she goes to school by cycle with her friends as
her father (Baba Appellant No.2) is busy in his shop. She
enjoys her time with friends, her class teacher being
Sushri Maam.
This Court after being sure about her ability to
understand asked the girl child whether she is having
any kind of difficulty in leading her life as compared to
others of her age, she was very clear and unequivocal in
her statement before the Court that she leads a
comfortable life, goes to school, enjoys food particularly
biryani, enjoys time with her siblings and they had a very
nice time in her last birthday.
The girl-child also clearly and unequivocally stated that
she does not know who is the respondent and how she is
related to the respondent.
6. Shri Santosh Kumar Sahu appellant no.2 and his
wife were called for interaction with the Court in
chambers. After the interaction with the girl child was
over and after she left, appellant no.2 and his wife were
called. They produced their adhar cards to identify
themselves before interaction. After interacting with them
this Court found them to be deeply attached to the girl
child as they adopted her as their daughter when she
was 16-18 months old when the mother of the girl child,
i.e., sister of the respondent no.2 met with unnatural
death.
The contents of the interaction with the girl child was not
disclosed to both appellant no.2 and his wife.
7. This Court interacted with the appellant and his
wife separately. The wife of the appellant no.2 stated that
they have got married since last three years and she is
[Emphasis supplied]
// 11 //
aware of the past of the appellant no.2 and particularly
the unnatural death of the first wife of the appellant no.2
and the incident thereafter. The appellant no.2 stated
that he being scared does not ever got to meet the girl
child who is staying with her maternal uncle since the
age of about 18 months till today.
xx xx xx"
13. In Nil Ratan Kundu (supra) the appellants-Nil Ratan and his
wife were the maternal grandfather and grandmother respectively
of a minor boy, father and mother of their deceased daughter
(mother of the boy). The respondent-Abhijit is the father of the boy,
i.e., husband of the deceased. From the wedlock of the daughter of
the appellants and Abhijit, the boy was born. There was allegations
of neglect and torture against the respondent-Abhijit towards his
wife. The respondent's wife, i.e., the mother of the minor died
unnaturally. A case was registered for offence punishable under
Sections 498-A and 304 of the Indian Penal Code, 1860. The minor
boy was found in sick condition at the residence of the respondent-
Abhijit, when he was aged about five years and his custody was
handed over on 18.04.2004 to the maternal grandparents. After
investigation, the police filed charge-sheet against the respondent
and the criminal case was pending.
14. Apparently, the facts of the case in Nil Ratan Kundu (supra)
and facts of the case at hand, have some striking similarities. The
difference being that the unnatural death of the mother was not
investigated in detail by the police in the case at hand, there was
an agreement between the parties not to lodge any complaint by
the appellants herein against the respondent, the police gave final
form without proceeding to further investigate the matter. The
agreement was by interference of the local gentries. The other
difference being the minor boy was taken to custody of the
maternal grandparents at the age of five years, whereas in the case
at hand the baby girl was kept in custody of the maternal
grandmother and in particular the maternal uncle(Respondent
// 12 //
No.2) and his wife(aunt) from her infancy i.e. when she was about
18 months old.
15. It is beyond the scope of the litigation and the consequent
adjudication by the learned Family Court and the litigation before
this Court in appeal, to enter into the question of validity of
"agreement" regarding not to support any prosecution against the
respondent after the unnatural death of his wife.
However, it has to be taken note that the agreement contains
the condition that the custody of the minor girl child shall be with
the maternal grandmother and maternal uncles, the father would
pay for the upbringing and the welfare of the child. The father
shall gift his property situated at a place "Kodala" by way of
registered conveyance deed in favour of his daughter.
16. From the evidence presented before the learned court below,
it is apparent that the respondent has not been able to comply his
part of the agreement regarding making payments for the welfare
and upbringing of the child and to transfer the property in the
name of the child. In fact the evidence of the respondent-petitioner
indicates that he has not been able to do so. It was not disputed
before the learned Judge, Family Court that the respondent-
petitioner handed over the custody of the infant-baby to the
maternal uncle and the maternal grandmother in the prevailing
circumstances, i.e. when the mother of the child died unnaturally
when the child was about eighteen months old.
17. To grant custody of the minor to the natural father, learned
trial court has observed at paragraph-11 of the impugned
judgment that "petitioner, being the father of the child, is her natural
guardian. He has not married second time. Had he not possessed
any love, affection or belongingness towards his daughter he would
have married again and have children."
However, during interaction of this Court with the
respondent and his wife they have stated that they are married
// 13 //
since about the year 2016. The date of argument of the hearing of
the C.P. before the Family Court was 12.11.2018 and the date of
judgment is 21.11.2018.
17.1 The other factors that weighed in the mind of the learned
court below to grant custody of the child are further indicated in
paragraphs-11 & 12 of the judgment and are quoted herein :
"11. xx xx Besides that, if the stand and version of
petitioner is to believe, he waited to get back his daughter
on the assurance of the respondents, as he had no
pressing voice owing the suicidal death of his wife.
On the other hand, the respondents measurably
failed to prove the facts and circumstances of execution of
the agreement (Ext.A), which is a Xerox copy. The
contention of the said agreement does not reveal any
culpability of present petitioner in playing any role in the
untimely death of his wife nor the post-mortem report of
Sasmita Sahu is filed before the Court.
12. Coming into the status of the respondents for
discussion, it is learnt that the respondent no.1 is an old
widow lady. The other respondent having their own
families, having respective children. No doubt the child
has been residing with the respondents since the death of
her mother, but in passage of time, when the respondents
have to deal with their own family burden, they might not
able to take proper care of the child and her future
prospective will be doomed.
On the other hand, the petitioner is alone having a
sound income. the child is his only child and he is quite
capable of taking her care. On the other word, the child is
the only substance for the living of the petitioner. It is a
fact that, the child is about eight (8) years old and she has
some rational knowledge. She has also some bank
deposits and owns a piece of landed property, being gifted
to her by her maternal uncle Krushna Chandra Sahu
(Ext.B). Her maternal uncles are around her, even if she
stayed with her father (petitioner)."
18. It would be apt to quote the observations and the principles
of law laid down by the Hon'ble Supreme Court in Nil Ratan
Kundu (supra):
52. In our judgment, the law relating to custody of a child
is fairly well settled and it is this : in deciding a difficult
// 14 //
and complex question as to the custody of a minor, a court
of law should keep in mind the relevant statutes and the
rights flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a
human problem and is required to be solved with human
touch. A court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a
guardian, the court is exercising parens patriae jurisdiction
and is expected, nay bound, to give due weight to a child's
ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But
over and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we may
say, even more important, essential and indispensable
considerations. If the minor is old enough to form an
intelligent preference or judgment, the court must consider
such preference as well, though the final decision should
rest with the court as to what is conducive to the welfare of
the minor.
xx xx xx
54. The approach of both the courts is not in accordance
with law and consistent with the view taken by this Court
in several cases. For instance, both the courts noted that
the appellants (maternal grandparents) are giving "all love
and affection" to Antariksh, but that does not mean that
Antariksh will not get similar love and affection from his
father. It was also observed that the appellants no doubt
got Antariksh admitted to a well-reputed school (St.
Xavier's Collegiate School, Kolkata), but it could not be said
that the father will not take personal care of his son. Both
the courts also emphasised that the father has the right to
get custody of Antariksh and he has not invoked any
disqualification provided by the 1956 Act.
55. We are unable to appreciate the approach of the courts
below. This Court in a catena of decisions has held that
the controlling consideration governing the custody of
children is the welfare of children and not the right of their
parents.
[Underlined to Supply Emphasis]
// 15 //
56. In Rosy Jacob [(1973) 1 SCC 840] this Court stated :
(SCC p. 854, para 15)
"15. ... The contention that if the husband [father] is
not unfit to be the guardian of his minor children,
then, the question of their welfare does not at all
arise is to state the proposition a bit too broadly and
may at times be somewhat misleading."
It was also observed that the father's fitness has to be
considered, determined and weighed predominantly
in terms of the welfare of his minor children in the
context of all the relevant circumstances. The father's
fitness cannot override considerations of the welfare of
the minor children.
57. In our opinion, in such cases, it is not the "negative
test" that the father is not "unfit" or disqualified to have
custody of his son/daughter that is relevant, but the
"positive test" that such custody would be in the welfare of
the minor which is material and it is on that basis that the
court should exercise the power to grant or refuse custody
of a minor in favour of the father, the mother or any other
guardian.
58. Though this Court in Rosy Jacob [(1973) 1 SCC 840]
held that children are not mere chattels nor toys, the trial
court directed handing over custody of Antariksh
"immediately" by removing him from the custody of his
maternal grandparents. Similarly, the High Court, which
had stayed the order of the trial court during the pendency
of appeal, ordered handing over Antariksh to his
father within twenty-four hours positively. We may only
state that a child is not "property" or "commodity". To
repeat, issues relating to custody of minors and tender-
aged children have to be handled with love, affection,
sentiments and by applying human touch to the problem.
59. At another place, the trial court noted that a criminal
case was pending against the father but the pendency of
the case did not ipso facto disqualify him to act as the
guardian of Antariksh. The court stated, "If ultimately the
petitioner (father) is convicted and sentenced in that case,
the OPs (maternal grandparents of Antariksh) will have the
scope to inform the fact to the court and to pray for change
of the court's decision". The court made a "comparative
study" and observed that it had "no hesitation" in holding
that the present and future of Antariksh would be better
secured in the custody of his father. It then stated:
// 16 //
"Antariksh should be, therefore, immediately
removed from the custody of OPs (maternal
grandparents) to the custody of the petitioner
(father)."
60. The appellants herein challenged the decision of the
trial court by approaching the High Court. With respect,
the High Court also committed the same error by not
applying the correct principles and proper test of welfare
of minor Antariksh as the paramount consideration. It,
no doubt, referred to the principle, but held that the trial
court was right in handing over custody of Antariksh to
the father.
xx xx xx
65. As already noted, Antariksh was aged six years
when the trial court decided the matter. He was,
however, not called by the court with a view to ascertain
his wishes as to with whom he wanted to stay. The
reason given by the trial court was that none of the
parties asked for such examination by the court.
66. In our considered opinion, the court was not right.
Apart from the statutory provision in the form of sub-
section (3) of Section 17 of the 1890 Act, such
examination also helps the court in performing onerous
duty, in exercising discretionary jurisdiction and in
deciding the delicate issue of custody of a tender-aged
child. Moreover, the final decision rests with the court
which is bound to consider all questions and to make an
appropriate order keeping in view the welfare of the
child. Normally, therefore, in custody cases, wishes of
the minor should be ascertained by the court before
deciding as to whom the custody should be given.
67. Before about a century, in Besant v. G.
Narayaniah [(1913-14) 41 IA 314] , under an agreement,
custody of two minor sons was with the mother who
was staying in England. The father who was residing in
Madras instituted a suit for custody of his sons
asserting that he was the natural guardian of the
minors and was entitled to have custody of both his
sons. The trial court decreed the suit which was
confirmed by the High Court. The Judicial Committee of
the Privy Council held that under the Hindu Law, the
father was the natural guardian of his children during
their minority. But it was stated that the infants did not
(Emphasis Supplied)
// 17 //
desire to return to India and no order directing the
defendant mother to send minors to India could have
been lawfully made by an Indian court. Upholding the
contention, allowing the appeal and dismissing the suit,
Their Lordships observed that it was open to the plaintiff
father to apply to His Majesty's High Court of Justice in
England for getting the custody of his sons:
" ... If he does so, the interests of the infants will be
considered and care will be taken to ascertain their
own wishes on all material points." (Besant
case [(1913-14) 41 IA 314] , IA p. 324)
Since it was not done, the decree passed by both the courts
was liable to be set aside.
(emphasis in original)
68. We may, however, refer at this stage to a submission of
the learned counsel for the respondent father. Referring
to Thrity [(1982) 2 SCC 544] , the counsel contended that this
Court held that the court is not bound to interview the child. In
that case, this Court did not interview the minors and did not
ascertain their wishes. It was, therefore, submitted that it
cannot be said that non-examination of Antariksh or failure to
ascertain his wishes by the trial court was illegal or unlawful
and vitiated the order.
69. We are unable to agree with the learned counsel. We have
closely gone through Thrity [(1982) 2 SCC 544] . Reading the
decision as a whole makes it amply clear that on the facts of
the case, this Court felt that calling minor children frequently
in chamber by Judges was not proper and such interviews
really disturbed them rather than giving them respite and
relief. This Court reproduced some of the observations of the
learned Judges of the High Court who had interviewed the
minors. The Court also considered sub-section (3) of Section
17 of the 1890 Act and the power of the court to interview a
minor child with a view to consider his/her preferences and
observed : (Thrity case [(1982) 2 SCC 544] , SCC p. 568, para
25)
"25. We may, however, point out that there cannot be any
manner of doubt as to the court's power of interviewing
any minor for ascertaining the wishes of the minor, if the
court considers it so necessary for its own satisfaction
in dealing with the question relating to the custody of the
minor."
// 18 //
xx xx xx
71. In the instant case, on overall consideration we are
convinced that the courts below were not right or justified in
granting custody of minor Antariksh to Abhijit, the respondent
herein without applying relevant and well-settled principle of
welfare of the child as the paramount consideration. The trial
court ought to have ascertained thewishes of Antariksh as to
with whom he wanted to stay.
72. We have called Antariksh in our chamber. To us, he
appeared to be quite intelligent. When we asked him whether
he wanted to go to his father and to stay with him, he
unequivocally refused to go with him or to stay with him. He
also stated that he was very happy with his maternal
grandparents and would like to continue to stay with them.
We are, therefore, of the considered view that it would not be
proper on the facts and in the circumstances to give custody of
Antariksh to his father, the respondent herein."
[Underlined to supply Emphasis]
19. The principles laid down in Nil Ratan Kundu (supra) have
been reiterated by the Hon'ble Supreme Court in Tejaswini Gaud
v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 : (2019) 3
SCC (Civ) 433 : 2019 SCC OnLine SC 713 at page 56 of SCC :
Welfare of the minor child is the paramount
consideration
26. The court while deciding the child custody cases is
not bound by the mere legal right of the parent or
guardian. Though the provisions of the special statutes
govern the rights of the parents or guardians, but the
welfare of the minor is the supreme consideration in
cases concerning custody of the minor child. The
paramount consideration for the court ought to be child
interest and welfare of the child.
27. After referring to number of judgments and
observing that while dealing with child custody cases,
the paramount consideration should be the welfare of
the child and due weight should be given to child's
ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings,
in Nil Ratan Kundu [Nil Ratan Kundu v. Abhijit Kundu,
(2008) 9 SCC 413], it was held as under : (SCC pp. 427-
28, paras 49-52)
// 19 //
"49. In Goverdhan Lal v. Gajendra Kumar
[Goverdhan Lal v. Gajendra Kumar, 2001
SCC OnLine Raj 177 : AIR 2002 Raj 148] , the High
Court observed that it is true that the father is a
natural guardian of a minor child and therefore has a
preferential right to claim the custody of his son, but
in matters concerning the custody of a minor child, the
paramount consideration is the welfare of the minor
and not the legal right of a particular party. Section 6
of the 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare
of the minor child. It was also observed that keeping
in mind the welfare of the child as the sole
consideration, it would be proper to find out the
wishes of the child as to with whom he or she wants
to live.
50. Again, in M.K. Hari Govindan v. A.R.
Rajaram [M.K. Hari Govindan v. A.R. Rajaram, 2003
SCC OnLine Mad 48 : AIR 2003 Mad 315] , the Court
held that custody cases cannot be decided on
documents, oral evidence or precedents without
reference to "human touch". The human touch is the
primary one for the welfare of the minor since the
other materials may be created either by the parties
themselves or on the advice of counsel to suit their
convenience.
51. In Kamla Devi v. State of H.P. [Kamla Devi v. State
of H.P., 1986 SCC OnLine HP 10 : AIR 1987 HP 34]
the Court observed : (SCC OnLine HP para 13)
'13. ... the Court while deciding child custody
cases in its inherent and general jurisdiction is not
bound by the mere legal right of the parent or
guardian. Though the provisions of the special
statutes which govern the rights of the parents or
guardians may be taken into consideration, there
is nothing which can stand in the way of the Court
exercising its parens patriae jurisdiction arising in
such cases giving due weight to the circumstances
such as a child's ordinary comfort, contentment,
intellectual, moral and physical development, his
health, education and general maintenance
and the favourable surroundings. These cases
[Emphasis Supplied]
// 20 //
have to be decided ultimately on the
xx xx xx
Court's view of the best interests of the child
whose welfare requires that he be in custody of
one parent or the other.'
28. Reliance was placed upon Gaurav Nagpal [Gaurav
Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1
SCC (Civ) 1] , where the Supreme Court held as under :
(SCC pp. 52 & 57, paras 32 & 50-51)
"32. In McGrath (Infants), In re [McGrath (Infants), In
re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed : (Ch
p. 148)
'... The dominant matter for the consideration of the
court is the welfare of the child. But the welfare of the
child is not to be measured by money only nor merely
physical comfort. The word "welfare" must be taken
in its widest sense. The moral or religious welfare of
the child must be considered as well as its physical
well being. Nor can the tie of affection be
disregarded.'
xxx *** xxx
51. The word "welfare" used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the
child must also weigh with the court as well as its
physical well being. Though the provisions of the
special statutes which govern the rights of the parents
or guardians may be taken into consideration, there is
nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in
such cases.
(emphasis in original)
29. Contending that however legitimate the claims of the
parties are, they are subject to the interest and welfare of
the child, in Rosy Jacob [Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840] , this Court has
observed that : (SCC pp. 847 & 855, paras 7 & 15)
"7. ... the principle on which the Court should decide
the fitness of the guardian mainly depends on two
// 21 //
factors : (i) the father's fitness or otherwise to be the
guardian, and (ii) the interests of the minors.
***
15. ... The children are not mere chattels : nor are they
mere play-things for their parents. Absolute right of
parents over the destinies and the lives of their
children has, in the modern changed social conditions,
yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced
manner to be useful members of the society and the
guardian court in case of a dispute between the mother
and the father, is expected to strike a just and proper
balance between the requirements of welfare of the
minor children and the rights of their respective parents
over them. The approach of the learned Single Judge,
in our view, was correct and we agree with him. The
Letters Patent Bench on appeal seems to us to have
erred [Jacob A. Chakramakkal v. Rosy J.
Chakramakkal, 1972 SCC OnLine Mad 90 : (1972) 85
LW 844] in reversing him on grounds which we are
unable to appreciate."
30. The learned counsel for the appellants has placed
reliance upon G. Eva Mary Elezabath [G. Eva Mary
Elezabath v. Jayaraj, 2005 SCC OnLine Mad 472 : AIR
2005 Mad 452] where the custody of the minor child aged
one month who had been abandoned by father in church
premises immediately on death of his wife was in
question. The custody of the child was accordingly
handed over to the petitioner thereon who took care of the
child for two and half years by the Pastor of the Church.
The father snatched the child after two and a half years
from the custody of the petitioner. The father of the child
who has abandoned the child though a natural guardian
therefore was declined the custody.
31. In Kirtikumar Maheshankar Joshi [Kirtikumar
Maheshankar Joshi v. Pradipkumar Karunashanker
Joshi, (1992) 3 SCC 573 : 1992 SCC (Cri) 778] , the father
of the children was facing charge under Section 498-A
IPC and the children expressed their willingness to
remain with their maternal uncle who was looking after
them very well and the children expressed their desire
not to go with their father. The Supreme Court found the
children intelligent enough to understand their well being
// 22 //
and in the circumstances of the case, handed over the
custody to the maternal uncle instead of their father.
xx xx xx"
20. By applying the principles of law laid down in Nil Ratan
Kundu (supra), particularly paragraph-52, that in selecting proper
guardian of a minor, the paramount consideration should be the
welfare and well-being of the child; in selecting a guardian,
particularly of a minor girl child, this court is exercising parens
partiae jurisdiction and is expected nay bound, to give due weight
to a child's ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But over
and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. When the child is old
enough to form an intelligent preference or judgment, this court
must consider such preference as well, though the final decision
should rest with this court as to what is conclusive to the welfare
of the minor.
21. In Smriti Madan Kansagra v. Perry Kansagra, (2021) 12
SCC 289 : (2023) 2 SCC (Civ) 512 : 2020 SCC OnLine SC
887, at page 324 SCC, the principles laid down in Nil Ratan
Kundu (supra) have also been quoted with approval.
22. Having considered the facts of the present case and taking
into account the provisions of the Act, 1956 : Sections 6, 7, 8 &
13 and applying the settled principles above, we are of the
considered opinion that the judgment and order passed by the
learned Family Court is not just and proper on more than one
grounds as discussed hereunder.
23. Learned Court has observed that had the father not possessed
any love, affection or belongingness towards his daughter, he
would have married again and have children. But the fact
remains that the father got married in the year around 2016.
// 23 //
Whether marriage of the father for the second time would be a
germane consideration or not to grant him the custody of the
child, would be another question, but the learned court clearly
erred in fact, in observing the present marital status of the father
: respondent-petitioner.
24. Though it has been the consistent view of the Hon'ble
Supreme Court that the custody of the minor children cannot be
decided solely by interpreting legal provisions, and the court
exercising paren patriae jurisdiction is expected to give due weight
to a child's ordinary comfort, contentment, education, intellectual
development and favourable surroundings, but over and above
physical comforts, moral and ethical values cannot be ignored
which are essential and indispensable considerations. The learned
Family Court has not at all delved into these issues.
25. Though the child is old enough to form an intelligent
preference or judgment, the learned Family Court did not
endeavour to know/ascertain such preference. Learned Family
Court applied the "negative test" that the father is not unfit or
disqualified to have custody of his daughter which as per
paragraph-57 of Nil Ratan Kundu (supra) is not that relevant to
decide/grant custody of child. The learned court did not apply
the "positive test" that the custody that the adjudicating court will
be granting, would be in the welfare of the minor, which is
material to refuse or to grant the custody as sought for. Learned
court below approached the issue from a perspective, only by
considering right of the father to have custody of the minor child
whereas the controlling consideration, as noted in paragraph-55
of Nil Ratan Kundu (supra) governing the custody of child should
have been the welfare of child.
26. Reliance on the decision rendered in Smriti Madan
Kansagra (supra) is of no avail to the respondent-petitioner. In
Smriti Madan Kansagra (supra) the father was seeking custody
// 24 //
of his son as against the claim of his wife, the mother of the son.
The facts and the surrounding circumstances as well as the wish
of the child therein were rather completely opposite to those of the
case at hand.
As indicated above by us, Smriti Madan Kansagra (supra)
has also approved and applied the principles enumerated in Nil
Ratan Kundu (supra), i.e. the paramount consideration while
deciding the custody of a child is welfare of the child and applying
such test in the present case, the respondent-petitioner cannot be
granted the custody of the child.
27. Apart from Nil Ratan Kundu (supra) where the father was
denied the custody of the child after death of the mother while
staying with the father in suspicious circumstances, in a decision
reported in Kirtikumar Maheshankar Joshi v. Pradipkumar
Karunashanker Joshi, (1992) 3 SCC 573, the Hon'ble Supreme
Court granted custody of two minor children to maternal uncle as
against the claim of the father. In that case, the mother had died
an unnatural death, the father was facing charge under section
498-A of I.P.C., the children were staying with their maternal
uncle. Before Hon'ble Supreme Court, both the children
expressed their desire to stay with their maternal uncle and not
with the father. Kirtikumar Maheshankar (supra) has been
quoted with approval in Nil Ratan Kundu (supra) at paragraph-
46 p.426 of SCC.
Paragraph-46 of Nil Ratan Kundu (supra) is quoted herein :
"46. In Kirtikumar Maheshankar Joshi v. Pradipkumar
Karunashankar Joshi custody of two minor children was
sought by the father as also by the maternal uncle. The
mother had died an unnatural death and the father was
facing charge under Section 498-A of the Penal Code,
1860. The children were staying with their maternal uncle.
Before this Court, both the children expressed their desire
to stay with their maternal uncle and not with the father.
Considering the facts and circumstances, and bearing in
mind the case pending against the father, and rejecting
his prayer for custody and granting custody to the
maternal uncle, the Court stated : (SCC p.575 para 7)
// 25 //
"7. ... After talking to the children, and assessing
their state of mind, we are of the view that it would
not be in the interest and welfare of the children to
hand over their custody to their father Pradipkumar.
We are conscious that the father, being a natural
guardian, has a preferential right to the custody of
his minor children but keeping in view the facts and
circumstances of this case and the wishes of the
children, who according to us are intelligent enough
to understand their well-being, we are not inclined to
hand over the custody of Vishal and Rikta to their
father at this stage."
[Emphasis Supplied]
28. In Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654
: AIR 2010 SC 1417, the Hon'ble Supreme Court dealt with an
appeal filed by the father of two minor children; a girl and a boy,
in a challenge to the order passed by the Hon'ble High Court
granting interim custody of the children to the maternal
grandparents, the High Court had reversed the judgment of the
learned Family Court granting injunction against the appellant-
father from interfering with the custody of his children remaining
with the respondents-maternal grandparents. The proceeding
before the learned Judge, Family Court was initiated under
sections 7, 9 & 17 of the Guardians & Wards Act, 1890 by the
maternal grandparents seeking relief against the father of the
children; not to interfere with the custody of the children and with
the property in the name of the minor children.
In Athar Hussain (supra) dismissing the appeal, by
rejecting the contentions of the father regarding unsuitability of
the maternal grandparents and their family to have custody of
their grand children, the Hon'ble Supreme Court, following the
earlier decisions and in particular, applying the principles laid
down in Nil Ratan Kundu (supra) as well as principles contained
in Section 13 of the Act, 1956, refused to grant custody of the
children to the father, though recognizing the fact that the father is
the natural guardian.
// 26 //
29. The paragraphs of the judgment in Athar Hussain (supra)
relevant for consideration in the present appeal are quoted herein
(as reported in SCC) :
"29. We have heard the learned counsel for both the
parties and examined the impugned order of the High
Court and also the orders passed by the Family Court.
After considering the materials on record and the
impugned order, we are of the view that at this stage the
respondents should be given interim custody of the minor
children till the disposal of the proceedings filed under
Sections 7, 9 and 17 of the Act.
30. Reasons are as follows : Section 12 of the Act
empowers courts to "make such order for the
temporarycustody and protection of the person or property
of the minor as it thinks proper". In matters of custody, as
well settled by judicial precedents, the welfare of the
children is the sole and single yardstick by which the court
shall assess the comparative merit of the parties contesting
for the custody. Therefore, while deciding the question of
interim custody, we must be guided by the welfare of the
children since Section 12 empowers the court to make any
order as it deems proper.
31. We are mindful of the fact that, as far as the matter of
guardianship is concerned, the prima facie case lies in
favour of the father as under Section 19 of the Guardians
and Wards Act, unless the father is not fit to be a
guardian, the court has no jurisdiction to appoint another
guardian. It is also true that the respondents, despite the
voluminous allegations levelled against the appellant have
not been able to prove that he is not fit to take care of the
minor children, nor has the Family Court or the High Court
found him so. However, the question of custody is different
from the question of guardianship. Father can continue to
be the natural guardian of the children; however, the
considerations pertaining to the welfare of the child may
indicate lawful custody with another friend or relative as
serving his/her interest better.
xx xx xx
34. Thus the question of guardianship can be independent
[Emphasis Supplied]
// 27 //
of and distinct from that of custody in the facts and
circumstances of each case.
xx xx xx
37. Stability and consistency in the affairs and routines of
children is also an important consideration as was held by
this Court in another decision cited by the learned counsel
for the appellant in Mausami Moitra Ganguli v. Jayant
Ganguli [(2008) 7 SCC 673 : AIR 2008SC 2262] . This
Court held : (SCC pp. 679-80, para 24)
"24. ... We are convinced that the dislocation of
Satyajeet, at this stage, from Allahabad, where he has
grown up in sufficiently good surroundings, would not
only impede his schooling, it may also cause emotional
strain and depression to him."
After taking note of the marked reluctance on the part of
the boy to live with his mother, the Court further observed :
(Mausami Moitra case [(2008) 7 SCC 673 : AIR 2008 SC
2262] , SCC p. 680, para 26)
"26. Under these circumstances and bearing in mind the
paramount consideration of the welfare of the child, we
are convinced that the child's interest and welfare will
be best served if he continues to be in the custody of the
father. In our opinion, for the present, it is not desirable
to disturb the custody of Master Satyajeet and,
therefore, the order of the High Court giving his exclusive
custody to the father with visitation rights to the mother
deserves to be maintained."
38. The children have been in the lawful custody of the
respondents from October 2007. In Gaurav
Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42] , it was
argued before this Court by the father of the minor child
that the child had been in his custody for a long time and
that a sudden change in custody would traumatise the
child. This Court did not find favour with this argument.
This Court observed that the father of the minor child who
retained the custody of the child with him by flouting court
orders, even leading to institution of contempt proceedings
against him, could not be allowed to take advantage of his
own wrong. The case before us stands on a different
footing. The custody of the minor children with the
respondents is lawful and has the sanction of the order of
[Emphasis Supplied]
// 28 //
the High Court granting interim custody of the children in
their favour. Hence, the consideration that the custody of
the children should not undergo an immediate change
prevails.
xx xx xx
41. However, the High Court of Rajasthan held that in the
light of Section 19 which bars the court from appointing a
guardian when the father of the minor is alive and
not unfit, the Court could not appoint anymaternal
relative as a guardian, even though the personal law of the
minor might give preferential custody in her favour. As is
evident, the aforementioned decision concerned
appointment of a guardian. No doubt, unless the father is
proven to be unfit, the application for guardianship filed by
another person cannot be entertained. However, we have
already seen that the question of custody was distinct
from that of guardianship. As far as matters of custody are
concerned, the court is not bound by the bar envisaged
under Section 19 of the Act.
xx xx xx
43. A plethora of decisions of this Court endorse the
proposition that in matters of custody of children, their
welfare shall be the focal point. Once we shift the focus
from the rights of the contesting relatives to the welfare of
the minor children, the considerations in determining the
question of balance of convenience also differ. We take
note of the fact that Respondent 3, on record, has stated
that she has no intention to get married and her plea that
she had resigned from her job as a technical writer to take
care of the children remains uncontroverted. We are,
hence, convinced that the respondents will be in a position
to provide sufficient love and care for the children until the
disposal of the guardianship application.
[Emphasis Supplied]
30. We had called the child to the chamber and interacted with
her. The child appeared to be quite intelligent, conscious of her
sorroundings and the attending circumstances and old enough and
capable to form an intelligent preference and she stated she is very
happy with her Baba (maternal uncle) and Maa (aunt) and would
like to stay with them. On the other hand she did not recognize the
respondent-petitioner as how he is related to the child.
// 29 //
31. Following the principles discussed above, some of the factors
those have been taken into consideration by us in deciding the
custody of the minor girl child are indicated herein :
stability and consistency in the affairs and routines of the
child and any dislocation may cause emotional strain to her as she
has been with the appellants since the age of 18 months as an
infant; marked eagerness in the child to continue to stay with
appellant no.2-respondent and his wife and their children (her
siblings) and lack of any inclination to go to the custody of
respondent-petitioner; no material was brought before the learned
Family Judge to change the custody apart from the fact that the
respondent being the father is the natural guardian; it is admitted
by the respondent that he never had custody of the child since she
was an infant of 18 months and the child grew up remaining in
custody of maternal grandmother, maternal uncle and their family;
and as observed in Athar Hussain (supra), the consideration that
the custody of the child should not undergo an immediate change
has to prevail in the facts and circumstances of the case.
32. We are, therefore, of the considered opinion that it would not
be proper in the facts and in the circumstances to change the
custody of the minor girl and give it to the respondent herein.
33. For the foregoing reasons and discussions, the appeal is
allowed setting aside the judgment and order dated 21.11.2018 in
C.P. No. 271 of 2015. Application C.P. No. 271 of 2015 filed by the
respondent-petitioner before the learned Judge, Family Court,
Berhampur is ordered to be dismissed.
// 30 //
In the facts and circumstances of the case there shall be no
order as to costs.
34. Epilogue :
Having decided as above regarding the custody of the minor
girl child at present, before we part with the judgment, we would
like to observe that there is always a hope that there shall be some
opportunity for the father to interact with his daughter who is now
a minor. We also hope and trust if in future there is any
opportunity of interaction between the father and the daughter,
the appellants would not stand in the way and in any event the
present proceeding was not regarding the "visitation rights" and
"contact rights" of the father. It is quite possible that the gulf
created between the families after the unfortunate demise of the
mother, would be bridged by efflux of time and there would be a
thaw in the relationship of the appellants and the respondent, so
that there can be some opportunities for the respondent to meet
and interact with his daughter. We hope such development would
be in the best interest of the child to become a grown up
individual having her identity in the society.
........................
(M.S.Sahoo)
Judge
Biswanath Rath, J. I agree.
...........................
(Biswanath Rath)
Judge
Signature Not Verified
Digitally Signed
Signed by: AJIT KUMAR DUTTA
Orissa High Court, Cuttack
Reason: Authentication
Location: OHC The 25th August, 2023/dutta
Date: 28-Aug-2023 18:32:21
