[Cites 5, Cited by 0]
Orissa High Court
Ramakanta Majhi vs Sanatan Majhi & Another on 1 December, 2025
IN THE HIGH COURT OF ORISSA, CUTTACK
GUAP No.03 of 2022
(In the matter of an application under Section 19 of the Family Courts Act, 1984
read with Section 47 of the Guardians and Wards Act, 1890)
Ramakanta Majhi ....... Appellant
-Versus-
Sanatan Majhi & another ....... Respondents
Advocate for the parties
For Appellant : Mr. P.K. Sahoo,
Advocate
For Respondents : None
----------------------------
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing & Judgment: 01.12.2025
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S.K. Mishra, J. The present Appeal has been preferred under
Section 19 of the Family Courts Act, 1984 read with
Section 47 of the Guardians & Wards Act, 1890 by the
Appellant, who is the natural father of the Respondent
No.2, challenging the Judgment dated 12.07.2022 passed
by the learned Judge, Family Court, Bhadrak in
Guardian Misc. Case No.13 of 2021, vide which his
prayer for guardianship stood rejected.
2. Though notice was duly served on the
Respondent No.l, who is the maternal grandfather of
Respondent No.2 (minor child) and represents him in this
Appeal, chose not to appear in this Case to oppose the
prayer made in the Appeal. Hence, the matter was taken
up for hearing on 06.11.2025, followed by further hearing
today.
3. Heard learned Counsel for the Appellant.
4. As is revealed from the record, the Appellant
preferred Guardian Misc. Case No.13 of 2021 before the
learned Judge, Family Court, Bhadrak with the following
prayers:
"a. That the petitioner be declared as legal guardian
and custodian of respondent No.2 and
Respondent No.1 be directed to hand over
Respondent No.2 to the custody of petitioner
within stipulated period.
b. That the cost of this litigation be passed against
the Respondent No.1 and in favour of the
petitioner.
c. That any other relief petitioner is entitled be
awarded to the petitioner.‖
GUAP No.03 of 2022 Page 2 of 16
4.1 It was specifically pleaded in Guardian Misc.
Case No.13 of 2021 that the Appellant (Petitioner before
the Court below) and deceased Ranjulata are the
husband and wife. After their marriage was solemnized
on 19.06.2019 according to Hindu rites and customs,
both of them were living as husband and wife peacefully.
When Ranjulata had been to her paternal house, she
expired there due to cardiac arrest. Since then the minor
child is with the Respondent No.1.
The Respondent No 1, who is the maternal
grandfather, has kept Respondent No 2, the minor son of
the Appellant. The Respondent No 1 did not allow the
Appellant to see his son. The Appellant visited his in-laws
house time and again but the Respondent No 1 allegedly
confined the Respondent No 2 in a room and did not
allow the Appellant to see his son which is nothing but
illegal confinement amounting to an offence. That apart,
it was also alleged that the life of Respondent No 2 is not
safe at the house of Respondent No. 1. After the death of
Ranjulata Majhi, the Appellant is the legal guardian-
GUAP No.03 of 2022 Page 3 of 16
custodian as per Hindu Minority and guardianship Act.
Still, he has been deprived to get back his son due to
illegal interference and illegal confinement by Respondent
No 1.
It was also pleaded before the Court below that
the Respondent No 2 is a child of 10 months and he has
been deprived to get nutritious food and unable to lead
his normal life and his life is in danger. In spite of
repeated requests, the Respondent No 1 is not allowing
the Appellant to remain with Respondent No 2. The
request to take Respondent No. 2 was refused by
Respondent No 1, thereby compelling the Appellant to
knock the door of the learned Court below seeking the
relief of guardianship of the Respondent No.2.
4.2 The Respondent No.1 appeared before the Court
below and filed an objection admitting therein that the
Petitioner (Appellant herein) as the natural guardian of
Respondent No.2 (minor child).
However, the prayer for guardianship was
opposed on mere apprehension that the present
GUAP No.03 of 2022 Page 4 of 16
Appellant (Petitioner before the Court below) is a young
person and he may marry another girl for his future. If it
so happens, the step mother cannot take proper care of
the new born child, which is often seen in present
society.
Such prayer was also opposed on the ground
that the Appellant and his family members never visited
the new born child for a single day or single occurrence.
That apart, in a Panchayat meeting, it was held that
the in-laws of deceased will return back all the gold and
silver ornaments and household articles to the
Respondent No-1 and they will return back Rs.50,000/-
which was given at the time of marriage. Further, it was
also held that, as there is no female member in the family
of the Petitioner, the new born child will live with his
maternal grandfather and grandmother and the Appellant
will provide a sum of Rs.30,000/- for a minimum period
of 5 years towards maintenance of the new born baby.
But it is a matter of regret, the Appellant and his family
members denied to return gold and silver ornaments and
GUAP No.03 of 2022 Page 5 of 16
household articles to the Respondent No-1 so also the
money. They also did not give a single pie for the
maintenance of the new born child. Hence, there is every
apprehension of proper maintenance of the new born
infant at the house of the Appellant.
5. Ultimately, the learned Court below passed the
impugned judgment on 12.07.2022 rejecting such prayer
for custody of Respondent No.2. Paragraph-7 of the
impugned judgment, being relevant, is extracted below:
"7. It is the settled principle of law that the burden
of proof lies on the person who asserts a certain
thing. Here, in this case, the initial burden lies upon
the petitioner to prove the fact that none other than he
himself is the father and natural guardian of the
respondent no.2. After going through the evidence of
PW-1 and on perusal of case record, it appears that
the petitioner has claimed himself to be the father of
the respondent no.2. He has also claimed that his
wife and the mother of the respondent no.2 is already
dead. However, on perusal of the entire case record, it
appears that not a single document to that respect is
available in' the case record. The petitioner has not
filed the birth certificate and death certificate of his
son and wife respectively before this Court to
ascertain the fact that none other than he is the
natural guardian of the respondent no.2. Similarly,
not a single independent witness has been examined
on behalf of the petitioner to ascertain the paternity of
the respondent no.2. In absence of any such clear,
cogent and trustworthy evidence in a case under the
Hindu Minority and Guardianship Act involving the
life of a minor child aged about 10 months is involved,
it will be just and proper to rely upon the
uncorroborated oral evidence of the petitioner.
GUAP No.03 of 2022 Page 6 of 16
Further, the petitioner has mentioned in his pleadings
as well as in his evidence that he was leading a
happy life along with his wife and son in his house
prior to death of his wife. This in other words means
he might have got the birth certificate of the
respondent no.2. But, he has not explained anything
in his evidence version what prevented him from filing
the said documents before this Court in order to
enable this Court to reach at a just and conclusive
decision.‖
6. Drawing attention of this Court to the
Objection/Written Statement, learned Counsel for the
Appellant submits, Respondent No.1 not only admitted
that the Appellant is the natural father of the Respondent
No.2, but also chose not to lead any rebuttal evidence to
substantiate the stand taken in his written Statement to
oppose the prayer made in the Guardian Misc. Case
No.13 of 2021. That apart, the learned Court below also
failed to take note of the provision enshrined under
Section 58 of the Indian Evidence Act, 1872, which
mandates that the facts admitted need not be proved.
Accordingly, a prayer is made before this Court to set
aside the impugned judgement and allow the prayer for
guardianship of the Respondent No.2.
GUAP No.03 of 2022 Page 7 of 16
7. As is revealed from the impugned Judgment, the
learned Court below rejected the prayer of the Appellant
for guardianship solely on the ground that the Appellant
(Petitioner before the Court below), though claimed
himself to be the natural father of the Respondent No.2,
failed to produce the birth certificate of the minor child so
also death certificate of his wife before the Court below to
ascertain the fact that none other than he is the natural
guardian of the Respondent No.2. That apart, the other
reason to reject such application was, except the present
Appellant (Petitioner before the Court below), not a single
independent witness was examined on behalf of the
Petitioner (Appellant herein) to ascertain the paternity of
the Respondent No.2.
8. Apart from the pleadings made in the Plaint, the
Respondent No.1, who was also the Respondent No.1
before the Court below, also admitted such claim made
by the Petitioner in Guardian Misc. Case No.13 of 2021.
Paragraph 6.(i) of the Objection filed by the Respondent
GUAP No.03 of 2022 Page 8 of 16
No.1 in Guardian Misc. Case No.13 of 2021, being
relevant, is extracted below:
―6. That the real story behind this case is as follows:
(i) That, the petitioner and the daughter of
the present Respondent No.1 namely Ranjulata are
legally married husband and wife, their marriage
was solemnized on 19.06.2019 and the couple was
blessed with the male child namely Rashmi Ranjan
who is the respondent No.2 of this case on dt.......
and is 1 year old now.‖
9. Section 58 of the Indian Evidence Act, 1872
mandates that facts admitted need not be proved, which
is reproduced below for ready reference.
―58. Facts admitted need not be proved.--No fact
need be proved in any proceeding which the parties
thereto or their agents agree to admit at the hearing,
or which, before the hearing, they agree to
admit by any writing under their hands, or which
by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion,
require the facts admitted to be proved otherwise
than by such admissions.‖
(Emphasis supplied)
10. The Supreme Court in Nil Ratan Kundu and
another Vrs. Abhijit Kundu, reported in (2008) 9 SCC
413, while deciding the principle governing the custody of
minor child, held as follows:
―52. In our judgment, the law relating to custody of a
child is fairly well settled and it is this: in deciding a
difficult and complex question as to the custody of a
minor, a court of law should keep in mind the relevant
GUAP No.03 of 2022 Page 9 of 16
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.‖
(Emphasis supplied)
11. Hence, this Court is of the view that despite
such admission made by the Respondent No.1 in his
Objection/Written Statement, the learned Court below
erred in law by coming to a conclusion that the present
Appellant failed to prove that he is the natural father of
the Respondent No-2 by producing and proving the death
certificate of his wife so also the birth certificate of his
son. Hence, the impugned judgment deserves
interference.
GUAP No.03 of 2022 Page 10 of 16
12. So far as natural guardian, Section-6 of the
Hindu Minority and Guardianship Act, 1956, being
relevant, is reproduced below:
"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.‖
(Emphasis supplied)
13. Admittedly, the Respondent No.2, after the death
of his mother, when he was an infant and only few weeks
old, has been separated from the Appellant-father .Since
then he has been living with his maternal grandfather
(Respondent No.1), who cannot have a better claim than
GUAP No.03 of 2022 Page 11 of 16
the Appellant-father, who is the natural guardian. There
is no allegation of any matrimonial dispute when the
mother of the child was alive nor a complaint of abuse
was perpetrated against the wife or son. There is no
allegation that the Appellant-father, who is the natural
guardian of the Respondent No.2 is unemployed and
uneducated and there is nothing standing against his
legal rights; as a natural guardian, and legitimate desire
to have the custody of his child.
14. Neither in the Plaint nor in the Written
Statement in Guardian Misc. Case No.13 of 2021, the
date of birth of the Respondent No-2 has been mentioned.
Rather, in the Plaint, which was presented on
20.04.2021, it has been mentioned that the Respondent
No-2 was 10 months old as on the said date. Hence, it
can be well presumed that, as on date, Respondent No-2
would be around 5 & 1/2 years old
15. 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
GUAP No.03 of 2022 Page 12 of 16
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.
16. This Court is of further view that, if no custody
is granted to the Appellant, the Court would be depriving
both the child and the father of each other's love and
affection to which they are entitled. As the child was in
tender age at the time of death of his mother and is
staying with his maternal grandfather, when he was an
infant and at present he would only be around 5 & 1/2
years old, he would be unable to express his intelligent
preferences. That apart, his choice cannot be ascertained
at this stage. If custody of the Respondent No.2 is
granted to the Appellant at this stage, with the passage of
GUAP No.03 of 2022 Page 13 of 16
time, he might develop more bonding with the Appellant.
But, if the prayer of the Appellant for guardianship is
further delayed, after some time, the Respondent No.2
may be reluctant to go to his natural father in which
case, the Appellant might be completely deprived of his
child's love and affection. 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.
17. As discussed herein above, this Court finds
that, apart from the Appellant being the natural
guardian, even in order to ensure the welfare of the minor
child, i.e., the Respondent No.2, more particularly, after
the death of his mother, should live with his natural
GUAP No.03 of 2022 Page 14 of 16
father. This Court is hopeful that, since the minor child is
of tender age, he will get adapted to his natural father
very well in a short period, if his custody is handed over
to the Appellant-father. This Court, therefore, is inclined
to allow this Appeal.
18. In the result, this Court passes the following
order:
i) The Appeal is allowed;
ii) The impugned judgment dated
12.07.2022 passed by the learned Judge,
Family Court, Bhadrak in Guardian Misc.
Case No.13 of 2021 is set aside;
iii) The Respondent No.1 is directed to
handover the custody of the minor child
namely, Rashmikanta Majhi(Respondent
No.2) to the Appellant forthwith;
iv) However, this Court permits the
Respondent No.1 (the maternal
grandfather of the Respondent No.2) to
meet the minor child namely,
GUAP No.03 of 2022 Page 15 of 16
Rashmikanta Majhi (Respondent No.2) at
the residence of the Appellant, as and
when he so desires, with prior intimation
to the Appellant regarding the date and
time of such visit.
19. Accordingly, the Appeal stands disposed of.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack
The 1st December, 2025/Prasant
Signed by: PRASANT KUMAR PRADHAN
Location: High Court of Orissa, Cuttack.
Date: 04-Dec-2025 16:44:05
