Orissa High Court
Gayatri Barik @ Bej And Another vs Dillip Kumar Bej ... Opposite Party on 19 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.7259 of 2025
Gayatri Barik @ Bej and another ... Petitioners
Mr. K. Rath, Advocate
-versus-
Dillip Kumar Bej ... Opposite Party
CORAM:
JUSTICE G. SATAPATHY
ORDER(ORAL)
Order No. 19.03.2025
01. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical Mode).
2. This writ petition by the Petitioners seeks to
challenge the impugned order dated 25.02.2025 passed
by learned Judge, Family Court, Balasore in IA No. 111 of
2024 arising out of CP No. 634 of 2024 refusing to
entertain the application of the writ Petitioners for
custody of the minor child, monthly maintenance and
educational expenses for Rs. 30,000/- for her in an
application U/S. 26 of the Hindu Marriage Act r/w Section
7 of the Guardians and Wards Act (In short "the Act").
3. Heard, Mr. Karunakar Rath, learned counsel for
the Petitioners in the matter and perused the record.
4. In the impugned order, while refusing to
entertain the application of the Petitioners, the learned
trial Court has observed as under:-
"It is seen that, there is no averments
from either side regarding custody of the
child. Both parties have already adduced
evidence from their respective sides. The
petitioner closed his evidence on
03.02.2024 and the respondent adduced
evidence from her side. The evidence of
respondent was closed on 15.04.2024.
Thereafter, the record was posted for
argument. When the record was posted
for argument, this IA petition has been
filed by the respondent-wife for the
custody of the minor daughter along with
other prayers. On perusal of evidence of
both parties, no party has raised any
question regarding the custody of the
child during course of recording of
evidence.
After closure of the evidence from
both sides, the case was posted for
argument. Though the said fact was
within the knowledge of petitioner-wife,
she did not raise the fact of custody of the
minor child during the course of evidence
of the case and now at the fag-end of
trial, has filed this case in order to linger
the case.
No doubt Section 26 of HM Act has
vested power upon the court to decide the
custody of the child. Since, there is no
averment on this point, the matter cannot
be decided in the present lA. So, the
interim petition is not maintainable."
5. True it is that an application U/S. 26 of the Act
can be entertained by the concerned Court in a pending
proceeding for dissolution of marriage, but fact remains
that such application has to be decided on the basis of
pleading and evidence led by the parties. However, in this
case, Mr. Rath could not apprise this Court as to whether
the writ Petitioners have made any averment/pleading
and led evidence for claim of custody of the child.
Further, Mr. Rath has not filed the written statement filed
by the writ Petitioners for perusal of the Court. On the
other hand, the learned trial Court has specifically
observed in the impugned order that in absence of
pleading and evidence, the Court is not in a position to
decide the custody of the child which according to this
Court is very correct. It is also not in dispute that right
now the case has been posted for argument and at that
stage, the writ Petitioners have come up with the
application seeking custody of the child as well as
maintenance, but the same is without any pleading and
evidence according to the learned trial Court.
6. In such circumstance and after carefully
examining the impugned judgment, this Court does not
find any error in the final conclusion arrived at by the
learned trial Court, since the learned trial Court has also
granted liberty to the writ Petitioners to approach the
concerned Court in appropriate proceeding for the
custody of the children and when such order has been
passed by disclosing that there is no pleading and
evidence with regard to custody and maintenance of the
child, this Court does not find any rhyme and reason to
interfere with the impugned order.
7. In the result, the writ petition stands disposed of.
Digitally Signed Judge
Location: HIGH COURT OF ORISSA
Date: 20-Mar-2025
Priyajit
13:45:51
