Monalisa Das vs Gajendra Kumar Dash
2023 Latest Caselaw 16046 Ori

Orissa High Court

Monalisa Das vs Gajendra Kumar Dash on 15 December, 2023

Author: Arindam Sinha

Bench: Arindam Sinha

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                MATA No. 133 of 2023


            Monalisa Das                           ....           Appellant

                                Mr. Kshitish Kumar Mohapatra, Advocate
                                       -versus-

            Gajendra Kumar Dash                    ....         Respondent

                                      Mr. Bijaya Kumar Mishra, Advocate




                     CORAM:
                                JUSTICE ARINDAM SINHA
                                JUSTICE SIBO SANKAR MISHRA



                                       ORDER

15.12.2023 Order No.

05. 1. Mr. Mohapatra, learned advocate appears on behalf of

appellant-wife/mother and submits, impugned is judgment dated 18th

March, 2023 made under section 25 in Guardians and Wards Act,

1890. The family Court directed custody of the minor girl child, who

is 8 years old, to be with respondent-husband/father. The judgment is

result of incorrect appreciation of the evidence. He draws attention to

paragraph-12 therein and points out, inter alia, there is erroneous

// 2 //

finding that respondent has joint family consisting of 8 to 9 members

and as such, it weighed with the learned Judge to direct his client to

hand over custody to respondent-husband. He points out from

evidence of P.W.2, landlord of respondent-husband that he was

staying alone in the rented accommodation.

2. The landlord was party witness from side of respondent-

husband. It is clear from his deposition that both the parties were

staying together in the rented accommodation. Appellant-wife left and

thereafter the deposition is that respondent-husband continued to

reside on his own. On further scrutiny of paragraph-12 we do not see

that the learned judge said respondent-husband was living in a joint

family but only said he has a joint family consisting of 8 to 9

members. This does not appear to be inconsistent or an erroneous

finding or appreciation of deposition dated 28th July, 2022 in cross-

examination of P.W.2.

4. Mr. Mishra, learned advocate appears on behalf of respondent-

husband. He relies on view taken by a learned single Judge of this

Court on judgment dated 10th April, 2014 in F.A.O. no.545 of 2013

(Smt. Manasmita Parida and others v. Rajen Kumar Parida), inter

alia, paragraph-8.

// 3 //

5. Section 25 provides for restoration of custody. We appreciate

respondent-husband's case made out to be that he is natural guardian

under section 6(a) in Hindu Minority and Guardianship Act, 1956.

Custody of his daughter has been taken away by appellant-wife, the

daughter being more 5 years old. Hence, the proceeding was duly

launched by his client, prior to civil proceeding subsequently launched

for dissolution of marriage.

6. Parties are to get ready for final hearing and disposal of appeal.

7. List on 21st December, 2023. Interim order to continue till next

date of hearing.

(Arindam Sinha) Judge

(S.S. Mishra) Judge Sks

Designation: PERSONAL ASSISTANT