Back
2011 (II) OLR — 857
L. MOHAPATRA AND S.K. MISHRA, JJ.
MATA No.3 of 2011
From the order dated 13.1.2011 passed by learned Judge, Family Court, Bhubaneswar, in C.M. Appeal No.134/2010 (Guardian Petition No.208/2008 disposed of on 18.5.2010).
Sri Shyama Prasad Tripathy
and others... Appellants
Versus
Aishwarya Satpathy... Respondent
Decided on 5th August, 2011.
ward then the mother is the natural guardian - In cases of children below five years of age, it is the mother, who should have the custody of the child - Most important consideration while deciding the case of this nature is the welfare of the child, which is the paramount importance - In case of a child, who is less than five years, unless there are some exceptional and compelling reasons, the custody should not ordinarily be given to the father - In the present case on facts direction that the child shall be in the custody of appellant No. 1-father during his school days and he will be in the custody of the mother-respondent during long vacations.
From the undisputed evidence on record, it is clear that the respondent is working in IBM and getting substantial amount as salary and has no other liability on her. It is also clear that she is staying there alone and there is nobody else to look after the child in case of her absence. Though there is flexibility of working from home the same do not appear to be adequate enough to come to a conclusion that she will be in a position to devote 24 hours to take care of her child. On the contrary appellant No.1 is engaged in business and is staying with his parents. Therefore, in the absence of appellant No.1, other two appellants are there to look after the child and the child can be attended to 24 hours a day. Another fact, though not taken into consideration by the learned District Judge is that the respondent has terminated her pregnancy twice prior to birth of Arindam. It is not her case that such termination of pregnancy was caused because of medical complicacies. This past conduct though is not the sole criteria to determine the attitude of the respondent towards her family, but is indicative of her attitude towards rising a family. Further more, when she was residing at Chennai alone, the child was less than three years of age and she admitted him to a Play School, which ones not appear to be reasonable to us. Admittedly, we find that the child is with the appellants for the last two years, at Bhubaneswar and, therefore, it can safely be presumed that he has accustomed with the life style of Bhubaneswar with his father an grand parents and at this juncture passing an order to remove him from Bhubaneswar to Bangalore will have an adverse psychological impact on the minor child. Though Section 6(a) of the Act provides that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother, we come to the conclusion that in this case for the betterment and welfare of the child, he should remain with his father. It is also noted that since the child is suffering from gluten sensitive enteropathy and secondary lactose intolerance he is not a suckling baby and the mother, who is living alone in a big city, is not in a better position than his father, who is residing in the native State along with his other family members. So this Court comes to the conclusion that the judgment passed by the learned District Judge, Khurda is not sustainable. (Paras - 10 to 15)
JUDGMENT
S.K. MISHRA, J. — In this appeal, the appellants assail the order dated 18th May, 2010 passed by learned District Judge, Khurda at Bhubaneswar in Guardian Petition No.208/2008 declaring that the respondent-mother is entitled to have the custody of her son. The facts leading to filling of this appeal may be stated as follows :-
The respondent filed a petition before the learned District Judge, Khurda, inter alia, pleading that she and appellant No.1 got married on 06.12.2000, which was duly registered. The couple led a happy conjugal life in the house of the appellants for some days. The respondent thereafter stayed at her place of posting in Chennai for about more than a year and appellant No.1 went to U.S.A. to his place of posting. Later they came to Bangalore, where they spent happy days together. They stayed in Bangalore for seven years.
2.During this period dissensions grew up between the parties. Appellant No.1 demanded a sum of Rs.10 lakhs from the respondent and when she was not able to comply with the same, she was ill-treated and tortured physically and mentally. It is further pleaded that initially the respondent was getting more salary than appellant No.1. She was meeting most of their expenses and appellant No.1 used to give his entire income to his parents for their maintenance and education of his brothers and sisters. On 11.5.2007 the child Arindam was born. During her pregnancy the respondent had lot of complications for which huge expenses were incurred. It is further pleaded that even though the respondent bore all such expenses, appellant No.1 was annoyed with the same. After birth of the child, the attitude of the appellants became hostile to the respondent and he started ill-treating her more and more. Appellant No.1 and his parents did not take proper care of the child.
3.In the year 2008 appellant No.1 decided to quit the job and take up the business of a builder at Bhubaneswar, which required huge investment. Therefore, appellant No.1 demanded a sum of Rs.20 lakhs from the respondent. When the respondent failed to oblige, appellant No.1 and his parents ill-treated her. Ultimately on 31.5.2008 at about 9.30 P.M., appellant No.1 brutally assaulted the respondent, snatched away the child and drove her away. The child was a breast feeding baby and was thirteen months old at that time. The respondent took shelter in the night in a friend’s house and in the next morning she came away to Bhubaneswar to her parents’ house. Thereafter, on 17.6.2008 respondent wrote a letter to appellant No.1 requesting him to handover the child to her. Thereafter, on several occasions the respondent requested appellant No.1 to handover the child to her over phone, but appellant No.1, on the other hand, threatened to kill the child if the demand was not fulfilled and did not allow her to see the child.
4.In June, 2008 appellant No.1 came to Bhubaneswar with the child and stayed with his parents. On 14.6.2008 the respondent went to their house and requested them to return the child to her. They did not return the child and behaved her in a rude manner. In the same year the respondent filed a writ petition being W.P.(Crl.) No.338 of 2008 before this Court to get back the custody of the child. This Court directed respondent No.1 to pursue her remedy under the Guardians and Wards Act. When the respondent was at Bhubaneswar and demanded the custody of the child, appellant No.1 and his parents forced her for a divorce. Thereafter the respondent filed a case for custody of the child claiming to be the natural guardian and rightful custodian of the boy Arindam.
5.The appellants, who were opposite parties before the Court of original jurisdiction, denying all the allegations made by the respondent, inter alia, pleaded that the respondent never liked to bear a child. She was a careerist. She did not like to quit her job under any circumstances. She even did not join her husband when he was in U.S.A. It is further pleaded that she has t
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
